The Anglican Curmudgeon

Diocese of South Carolina Asks US Supreme Court for Review

2/10/2018 11:13:00 AM
Bishop Mark Lawrence and his Diocese of South Carolina, along with a number of member parishes, having lost a confusing, non-definitive and divided decision in that State's Supreme Court, have filed a petition for writ of certiorari (review) in the United States Supreme Court. The petition (fifty pages, downloadable from this link) asks the Court to bring harmony to the multiple lower court decisions that diverge over the meaning of "neutral principles of law" as used by the Court in its seminal case of Jones v. Wolf, 445 U.S. 595 (1979).

As the petition lays out with masterful clarity, both state and federal courts apply differing standards of "neutral principles" in approaching the resolution of disputes over the ownership of church property:
Nearly 40 years after this Court last addressed the neutral-principles approach in Jones, the courts are deeply divided about what “neutral” means. For many courts, “neutral” means just that—“neutral”: the high courts of seven States, plus the Eighth Circuit and three intermediate state courts, follow Jones’ clear guidance and resolve property disputes between religious organizations by applying well-established state trust and property law. These jurisdictions hold that a disassociating local church’s property is held in trust for the national church only if the alleged trust satisfies ordinary state law requirements for the creation of trusts. Courts and commentators call this the “strict approach” to Jones, because it blinds judges to the religious nature of the parties to the dispute, requiring them to apply the same ordinary state law that would apply to property disputes between any other parties.
In stark contrast to these decisions are the cases where the lower courts found that Jones mandated that they defer to whatever kind of "trust" was expressed in a national church's governing documents, regardless of whether that church had complied with state-law requirements applicable to the formation of trusts in real property:
For other courts, however, the neutral-principles approach “is not really ‘neutral’ after all.” App.61a (Kittredge, J., concurring in part and dissenting in part). The high courts of eight States, including the Supreme Court of South Carolina here, believe Jones requires courts to recognize a trust in favor of a national church even if the national church has not complied with “the specific legal requirements in each jurisdiction where the church property is located.” App.28a n.11 (lead opinion of Pleicones, A.J.). These courts believe that requiring a national church to comply with ordinary state law “would impose a constitutionally impermissible burden on the National Church and violate the First Amendment.” App.42a (Hearn, J., concurring). Liberating national churches from the constraints of state law, these courts place a dispositive thumb on the scale in favor of national church denominations. This is called the “hybrid approach” to Jones, because it eschews application of ordinary state law in favor of deference to the national church’s unilateral rules and canons.
In church property cases involving parishes and dioceses within the Episcopal Church of the United States (ECUSA). this discord is due to the differing receptions given to that body's so-called "Dennis Canon":
The Supreme Court of South Carolina’s highly fractured decision below typifies the courts’ yawning division over the neutral-principles approach. Petitioners have disassociated from the national Episcopal Church. The parish properties at issue here are titled in the names of Petitioners, not the national church. Under ordinary principles of South Carolina trust law, in the strong words of Justice Kittredge below, “the suggestion that any of the thirty-six local churches created a trust in favor of the national church would be laughable.” App.61a. Nevertheless, the court below, in a 3-2 decision, held that a trust could exist in favor of Respondents because the national church has promulgated the “Dennis Canon,” a unilateral ecclesiastical declaration that all parishes affiliated with the Episcopal Church hold their property in trust for the national church. Although neither the Dennis Canon nor any parish’s alleged accession to that Canon created a legally cognizable trust under South Carolina law, the court below thought Jones and the First Amendment required it to recognize a trust in favor of the national church.
Jones is clear: Because the neutral-principles approach demands application of ordinary state law, courts may give effect to property deeds or to trusts recited in the constitution of a general church only if the parties’ intent “is embodied in some legally cognizable form.” 443 U.S. at 606. Courts adopting the hybrid approach ignore Jones’ unambiguous guidance because they believe that requiring national churches to comply with ordinary state trust law would violate the Free Exercise Clause. E.g., App.42a (Hearn, J.). But Jones squarely rejected that argument, holding that “[t]he neutral-principles approach cannot be said to ‘inhibit’ the free exercise of religion, any more than do other neutral provisions of state law governing the manner in which churches own property, hire employees, or purchase goods.” 443 U.S. at 606.
The petition then addresses the Court directly, and explains why it should grant review:
Petitioners are here for one simple reason: they are churches. If this dispute arose between two secular organizations, or between a religious and a secular organization, the party standing in Petitioners’ shoes would have prevailed. Thus, far from yielding to the First Amendment, the decision below actually violates it. The Religion Clauses command a “principle of neutrality” whereby “the government may not favor one religion over another, or religion over irreligion, religious choice being the prerogative of individuals under the Free Exercise Clause.” McCreary Cty. v. American Civil Liberties Union of Ky., 545 U.S. 844, 875-76 (2005). The hybrid approach disregards this vital bulwark, favoring one religious organization over another by allowing a national church to disregard the requirements of state trust law at the expense of a disassociated congregation’s claim to property. As two leading commentators recently emphasized, the strict approach to Jones is “the only approach consistent with the free exercise and nonentanglement principles of the Religion Clauses.” Michael W. McConnell & Luke W. Goodrich, On Resolving Church Property Disputes, 58 ARIZ. L. REV. 307, 311 (2016). 
The persistent confusion over the meaning of Jones and the neutral-principles approach has resulted in polar-opposite outcomes in materially indistinguishable cases, creating enormous -- and enormously expensive -- uncertainty for this country’s religious institutions. Case outcomes turn on courts’ differing interpretations of Jones and the First Amendment, not on how the parties have arranged their affairs under state law. This case could have been easily resolved under ordinary state trust and property law. Instead, the parties and the property have been mired in litigation since 2013. Several years and millions of dollars later, Petitioners seek this Court’s review.
The introduction to the Petition, from which I have been quoting, thus gives a good overview of the problems of interpretation that have brought Bishop Lawrence and his parishes to the doorstep of our country's highest court.  In the section entitled "Statement of the Case" (beginning at page 17 of the .pdf file), the petitioners lay out the historical and legal background that underlies their particular situation, e.g., as in these paragraphs:
Petitioners are 29 parishes, the Protestant Episcopal Church in the Diocese of South Carolina (“the Diocese”), and the Trustees of the Protestant Episcopal Church in South Carolina (“the Trustees Corporation”). This case involves a dispute over property where Petitioners have long worshiped. Some of the parishes involved in this case are among the oldest in the nation and predate both the American Revolution and the formation, in 1789, of the Protestant Episcopal Church in the United States of America (“the national Episcopal Church”). App.151a-52a. For example, the Parish of Saint Philip dates to 1680, while the parishes of Christ Church and St. Helena date respectively to 1706 and 1712. App.151a. The parishes’ graveyards provide the resting place for signers of the Declaration of Independence and the United States Constitution, Justices of the Supreme Court of the United States, a Vice President of the United States, and heroes of the Revolutionary War. 
Everyone agrees that the parish property is “titled and held in [the] names” of Petitioners, and that “there is nothing in the deeds of their real property referencing any trust in favor of [the national Episcopal Church].” App.171a; see also App.75a-76a, 80a. Moreover, “[t]he undisputed evidence is that all the real and personal property at issue was purchased, constructed, maintained and possessed exclusively by the Plaintiffs.” App.175a. See also App.105a, 154a. The national Episcopal Church nevertheless claims Petitioners’ property and argues that Petitioners hold the parish property in trust for the national church. This claim relies primarily on the fact that in 1979, the national church pronounced the “Dennis Canon” . . .  
The national Episcopal Church “chose not to place its Dennis Canon in its Constitution,” perhaps because “[t]o do so would require that the proposed amendment be sent to all the Dioceses first to get their conventions to vote on the proposed amendment.” App.173a. “Rather, [the national Episcopal Church] chose to pass it as a canon, which required a single vote at one Convention [of the national Episcopal Church].” Id. “To make matters more confusing, the denomination’s official commentary on the Dennis Canon suggested that it might have no legal force.” McConnell, 58 ARIZ. L. REV. at 320.
The Statement of the Case concludes with a section that summarizes the five fractured opinions of the individual justices below, as discussed in this earlier post. Then comes the main body of the Petition, called "Reasons for Granting the Petition," which argues that the divisions among the South Carolina justices are but a reflection of the divisions among the various state and federal courts that have addressed church property disputes in the forty years since Jones:
Once a local congregation legally disassociates from the national church over a doctrinal matter, it by definition no longer adheres completely to the national church’s fundamental tenets. The law cannot then place a thumb on the scale in favor of a national church in its property dispute with a disassociating congregation any more than it can enact a presumption that the national Episcopal Church shall prevail in litigation against the Roman Catholic Church or Ford Motor Company. 
The division over the meaning of Jones is deep and intractable. Even the cavernous divide among states understates the extent of disagreement over Jones, for many of the state court decisions feature impassioned dissents contending that the majority has misapplied Jones. This massive inconsistency in the results of materially indistinguishable cases has visited enormous and expensive uncertainty upon this country’s religious institutions. Worse still, by unmooring courts from the predictability of established state law, the hybrid approach “gives judges tremendous flexibility to reach almost any result—making the outcome unpredictable and largely dependent upon the predilections of the judges.” McConnell, 58 ARIZ. L. REV. at 339 (quotation marks and brackets omitted). The need for clarity is more pressing now than ever, for this “time of intense theological ferment and division” has led to some of “the most widespread schisms in our nation’s history.” Id. at 321. 
Four decades after Jones, the Nation’s lower courts and religious institutions are in urgent need of this Court’s guidance.
In the more detailed sections that follow, the Petition demonstrates how the South Carolina majority's reading of Jones (a) misreads that decision; (b) conflicts with the Supreme Court's other decisions under the Establishment and Free Exercise clauses of the First Amendment; and (c) undermines the stability of real property markets, as well as "the rule of law." Be sure to read the whole thing -- you will gain an understanding of the confused state of the law in this area, and of the crying need for the Supreme Court to make clear, once and for all, what it meant by the phrase it so stressed in Jones, namely, "neutral principles of law."

The Petition is also remarkable for what it does not argue. There is barely a mention, for example, of the disgraceful and disqualifying conduct of Associate Justice Kaye Hearn below, and no argument whatsoever that the South Carolina court's refusal to appoint a fifth justice in her place (resulting in the denial of Bishop Lawrence's petition for rehearing due to an evenly divided court) constituted a denial of due process. (The stark facts, however, are stated for all to read on pages 28-29 of the .pdf file [pages 17-18 of the Petition itself].) These are the kinds of decisions that litigators in the nation's highest court have to make in presenting their arguments to it. One goes with the strongest arguments first, and sometimes adding more arguments will just undermine the strength of the earlier ones.

The Episcopal Church in South Carolina, which will receive the windfall of millions of dollars' worth of historic church properties if the Court declines to review the case, now has thirty days in which to file its response to the petition. (It can also ask for a thirty-day extension.) After that, Bishop Lawrence's attorneys may file a reply brief, and then the case will be placed on the court's Friday calendar for disposition. It will require the vote of at least four of the nine Supreme Court justices to grant review.

We shall know better after all the briefs are filed, but look for an announcement some Monday morning in May, after 10:00 am EST. Please keep all the parties in South Carolina in your prayers.








Last Words

2/5/2018 3:13:00 AM
[Note: I interrupt my ongoing explorations into today's Christian origins to record my thoughts about other works encountered along the way.]

Jacques Monod was a brilliant microbiologist, one who was present at the very beginning of the explorations that led to the discovery of the role that genes play in the development and evolution of life. Along with his coworkers, he was awarded the Nobel Prize in 1965 for physiology / medicine on account of their elaboration of the mechanisms by which genes are either expressed or repressed in the course of an organism's development.

As detailed in this biography, he was a fierce partisan during the years of the Vichy government's betrayal of France, and played a leading role in the forces of the Resistance movement -- at considerable risk to his own life.

The same book chronicles his lifelong friendship with another Resistance supporter, the Algerian-born Albert Camus, who clandestinely inspired his countrymen through his uplifting editorials published, despite numerous Nazi attempts at suppression, in an underground journal of the French resistance during World War II, called Combat.

Camus and Monod shared in common a philosophy of resistance during a period of of unparalleled oppression. A great number of their colleagues suffered torture and death at the hands of the Nazis, who practiced extreme means of repression based largely upon arbitrary and anonymous sources of information. The Nazis would presume that anyone caught in a compromised situation was deserving of punishment -- mostly summary execution. That stance in return produced a fatalism in the forces of the Resistance that led them to take extreme risks, despite the individual costs to their lives.

Having lived through these arbitrary horrors of invasion, resistance and retaliation at first hand, Monod and Camus came to espouse a philosophy which derived from the existentialism of Jean-Paul Sartre, but which added an element of heroic resistance to the indifferent forces of evil which the latter's philosophy neither explained nor judged. Camus expressed it in this fashion in an editorial he wrote for the underground newspaper Combat on the eve of the day that the Germans surrendered Paris to the invading Allied forces:
Nothing is given to mankind, and what little men can conquer must be paid for with unjust deaths. But man's grandeur lies elsewhere, in his decision to rise above his condition. And if his condition is unjust, he has only one way to overcome it, which is to be just himself. Our truth tonight [August 24, 1944], the truth that hovers in the August sky, is in fact man's consolation. What gives our heart peace, as it gave peace to our dead comrades, is that we can say before the impending victory, without scolding and without pressing any claim of our own, 'We did what had to be done.'
Despite their agreed condemnation of the evils generated by Hitler's Nazism, neither Camus nor Monod had any recourse to Christianity in the responses they undertook. For both of them, life was the product of chance forces that happened to result in reproductive success, without any need for the intervention of a divine mover. As the random outcome of an indeterminate beginning, life had no inherent claim to happiness -- still less any immunity against the forces of evil, which were just as random. Life came by chance alone into the universe in which it found itself, and it was likewise all alone in dealing with whatever it encountered.

Monod's signature work, called (in English) Chance and Necessity, summed up his philosophy: life began on earth by random assembly, over time, of its essential components. Once those were in place, life progressed by the preordained laws of physics, i.e., by necessity. In the face of such an inhuman origin, humans themselves had no claim to any special status. The best they could do was to live out their allotted times in vigorous affirmance of the good that they could manage to discover and enjoy, and in equally determined resistance to the evil that inevitably they would encounter along the way.

Life, in short, for both Camus and Monod, was a one-shot experience, which in the end amounted to nothing other than what the individual could manage to salvage from it through heroic acts of resistance to evil, and support and affirmation of anything that was good. If the situation called for self-sacrifice, so be it, but there was no hope of any reward beyond; to believe that was to subscribe to fairy tales.

There is thus an inherent self-contradiction in the existentialist philosophy as lived by both Camus and Sartre. Noble, self-sacrificing deeds are to be praised and admired, but only by one's fellow humans, who will soon pass out of existence -- along with any human memory of those noble deeds. So why admire them, if in the end they will count for nothing? For Camus and (probably also, although not expressly) for Monod, this was the great paradox of existence: life counted for nothing, except what the individual made of it -- and even then, no matter what the individual did, it still came to nothing.

As Camus said of a character in his novel The Stranger, Meursault laid his "heart open to the benign indifference of the universe." Likewise, the eternally tormented Sisyphus (in The Myth of Sisyphus) was one to whom "this universe without a master seems . . . neither sterile nor futile."  And for Monod, despite our existence in a world enlightened by the discoveries of science, there is no outside source of meanings or values: "[man] alone creates, determines and shapes them."

All his professional life, Jacques Monod worked at the Pasteur Institute in Paris, and his great achievements reflected back on that noble institution, founded by the great Louis Pasteur himself. Toward the end of his life, he assumed its directorship, and strove to advance the goals he believed that Pasteur embodied, as he laid them out in a speech celebrating Pasteur's 150th birthday in 1973:
Where does genius come from? Often we are contented with attributing it to a unique, exceptional, and mysterious resource of mind. On the contrary, in the case of Pasteur, we see clearly that the power of his genius comes from multiple sources . . . . He was ambitious and dominating and would be satisfied only with real and complete victories.  He was rigorous and demanding toward himself. At the same time he would spare no efforts to be severe and disciplined.
Monod could have applied these same words to some of his colleagues in the French Resistance. They definitely defined his outlook on life, and led to his lifelong friendship with Camus.

What is missing in all this description of the lives of Monod and Camus is any element of the Catholic religion, which was omnipresent in France before the Second World War, but whose respect and prestige suffered greatly as a result of the tribulations to which the French were subjected during the Nazi occupation and collaboration, thanks to the betrayal of the country by its most respected leaders. Both Camus and Monod were staunchly agnostic, if not atheist, and their wartime experiences with Nazi brutality served only to strengthen their resistance to religion of any kind.  For Monod, the scientist who believed that all life resulted from chance, God was an entirely unnecessary hypothesis.

The result was that both Camus and Monod developed their philosophies as limited to what man could accomplish alone. God was neither a help nor a comfort in all the afflictions they went through in the 1940s. Rather, He was a useless fabrication handed down by earlier generations -- a fantasy in which no rational person of their age could put any trust. Indeed, the very brutality of the war itself was evidence against the existence of a benign Creator God, who could allow such bestiality to occur.

Albert Camus died in an unfortunate automobile accident on his way back to Paris in January 1960. No one witnessed his death, which was instantaneous. But Jacques Monod, following the death of his wife and lifelong love Odette from cancer in 1972, died himself in a hospital in Cannes in May 1976, with his brother and cardiologist in attendance. The author of Brave Genius interviewed those to whom Monod's brother related his last words, and reported:
Philo [Monod's brother] heard his brother say very faintly between breaths, "Odette . . . Pasteur . . ." Then, after a pause, Monod said "Je cherche à comprendre" ("I am trying to understand"), and never regained consciousness.
I have looked up a number of accounts of Monod's death on the Internet, of which this one is typical. Significantly, while all recount his statement "I am trying to understand", none of the online accounts mentions his addressing two of the most important individuals in his life just before he uttered those last words. Considered in context, they amount to a touching description of one who was taken by pleasant surprise to learn just what one encounters after death.

Odette and Jacques Monod married in 1938; she bore him two sons, and they were married for 34 years. She was Jewish, and he had to hide her from the Germans under a disguised identity; while away on Resistance business, he wrote to her almost every day.

Louis Pasteur, on the other hand, had died in 1895, fifteen years before Monod was born. Yet Monod's lifelong association with the Pasteur Institute, and his succession to its directorship, is a sufficient basis upon which to surmise that he closely identified with that archetypal figure of French science.

It is thus tellingly significant that as the proudly agnostic Monod drew his last breaths, he appeared to be comforted (indeed, welcomed?) by two of the figures most important to him, who had preceded him in death.

The book Brave Genius was a stimulating account of two intertwined lives that rose above the desultory circumstances into which they were born. I was thus pained to read how Monod and Camus each prided himself on his reliance on nothing more substantial than puny, solitary man, and did his level best to make do with that restricted philosophy. Notwithstanding their own imposed self-handicap, they led heroic lives, in which each was prepared to sacrifice all so that the Resistance to which they belonged could survive to fight the evil forces that occupied their country.

I am hopeful that the account of Monod's last moments evidences a greater reality than either of them ever suspected or imagined while alive, but to which instinctively they gave their unknowing best here on earth.

From Doubt to Certainty: Luther's Transformation

1/22/2018 1:04:00 AM
Despite all the tumult and clamor, the year 2017 did not mark the "500th anniversary" of the Reformation movement begun by Martin Luther. At most, it marked the 500th year after Luther sent off his Ninety-five Theses to the Archbishop of Mainz, to protest the manner in which indulgences were being offered and awarded under that eminence's authority.

(As Richard Rex shows in the opening pages of his recent work, The Making of Martin Luther, the notorious incident of Luther's nailing the theses to the wooden doors of the Castle Church at Wittenberg on All Hallows' Eve of 1517 is in all probability a myth that was loosely fabricated, just after Luther died, by his colleague Philipp Melanchthon. Its vividness has gripped the popular imagination ever since, but it never happened in that way in 1517. Instead of posting them publicly, Luther quietly mailed his theses, and a fawning covering letter, to Archbishop Albrecht of Mainz, who in due course referred them to the local university for advice. They did not see print, translation (from Latin into German), and wider circulation until January 1518.)

As noted, the Ninety-five Theses were directed against the offer and award of indulgences, which in Luther's case had been authorized by Pope Leo X and (in his territory) Archbishop Albrecht for contributions made toward the cost of building the massive edifice that would become St. Peter's Basilica in Rome. Ironically, Luther's own sovereign, the Elector Frederick, did not authorize them in his territory of Wittenberg, due to the fact that he already enjoyed a steady stream of pilgrims coming to view the huge collection of saints' relics he had amassed over the years, and did not want to contribute in any way to a lessening of that trade.

Indulgences had developed in the Middle Ages as a means of remitting the temporal penalties due on account of a Christian's sins committed after baptism (which wiped the slate clean as of that point, so to speak, but could do nothing about a Christian's subsequent falls from grace). These penalties were imposed as part of the Catholic rite of penance, and in the Middle Ages involved harsh fasting and mortification of the flesh.

At the beginning of the second millennium, indulgences were offered as an inducement to undertake the perilous pilgrimage to Jerusalem (whether as a Crusader or otherwise), from which many did not return. Later, they expanded to cover still other charitable acts, and could be applied by the living to shorten the time in Purgatory of those already dead. The notion of their being "sold" derived from their use to pay the cost of building St. Peter's -- technically, the money went in as a "contribution", and the indulgence was granted in order to induce the contribution. The Catholic Church still offers indulgences today for certain penitential acts and attendance at special masses.

Thus, it is fascinating to note that in 1517, Martin Luther's chief complaint about transactions in indulgences was that the faithful were being deceived into believing that they could "purchase" an assured salvation, simply by acquiring enough indulgences. Take a look at these selections from Luther's 95:
23. If remission of all penalties whatsoever could be granted to anyone at all, certainly it would be granted only to the most perfect, that is, to very few.

24. For this reason most people are necessarily deceived by that indiscriminate and high-sounding promise of release from penalty.

27. They preach only human doctrines who say that as soon as the money clinks into the money chest, the soul flies out of purgatory.

30. No one is sure of the integrity of his own contrition, much less of having received plenary remission.

32. Those who believe that they can be certain of their salvation because they have indulgence letters will be eternally damned, together with their teachers.

33. Men must especially be on guard against those who say that the pope's pardons are that inestimable gift of God by which man is reconciled to him.
Luther thus was railing against the notion that a sinner's salvation could be assured, i.e., made certain in this life, by acquiring enough indulgences. As he added, in his cover letter to Archbishop Albrecht:
For a human being does not attain security about salvation through any episcopal function, since a person does not even become secure through the infused grace of God. But instead the Apostle [Paul] orders us constantly to “work out our salvation in fear and trembling.” “It is hard for the righteous to be saved.” Furthermore, “the way is [so] narrow that leads to life,” that the Lord through the prophets Amos and Zechariah calls those who will be saved “a brand plucked from the fire.” The Lord, too, announces the difficulty of salvation everywhere. How then can the [indulgence preachers] make the people secure and unafraid through those false tales and promises linked to indulgences...?  
When most people speak of Luther's "Reformation", they refer to the promulgation of his doctrine of "justification through faith alone." Again, however, it is necessary to observe (again, as shown superbly in chapter 4 of Prof. Rex's book linked above) that Luther knew nothing of any such doctrine in 1517. Its first glimmerings appear in his writings in 1518. And it is in the uncovering of Luther's development of that doctrine that the real truths behind the Reformation emerge.

Note, first of all, the paradox in Luther's doctrine compared to his criticism of indulgences. If one can be saved by faith alone, then there is a path to assured salvation in this life by the believer's making certain of his genuine (and repentant) faith in Jesus Christ. Nothing more, according to Luther, is required.

Yet not even the Pope himself, again according to Luther (see above), could assure anyone in this world of salvation by the Pope's plenary power (the keys given to Peter by Christ -- see Mt. 16:19) to remit sins here on earth.

Thus Luther went from criticizing a "get-out-of-jail-free" card offered by the pope for contributions to offering one of his own, which required nothing more than the believer's sincere confession of faith -- and all this in the space of one year. What happened to cause such a "revolution"?

The details are carefully and painstakingly compiled in chapter 4 of Professor Rex's book. In general, Luther by 1517 had become an extremely insecure and anxious Augustine monk, for whom no amount of self-mortification, fasting, or other harsh penances performed to restore him to grace after confession could prevent him from sinning again (and needing to go through penance once more). A redoubling of his efforts left him exhausted and just as depressed and uncertain as before; his confessor encouraged him to let go of his guilt and "love God."

Then, at some point in the Lenten season of 1518, Luther had his famous revelation ("in cloaca" -- presumably, while sitting in the privy) based on his re-reading of Romans 1:17: ". . . [T]he just [righteous] one shall gain life [be preserved] because of his faithfulness" (quoting Hab. 2:4). He then developed his famous doctrine out of the following syllogism:
A. Christ Himself promised that "the one who believes and is baptized will be saved, but the one who does not believe will be condemned" (Mt. 16:15).

B. Christ's promises are as certain as certain can be, because He is God.

C. Therefore, the only thing a sinner needs to be certain of enjoying the fruits of Christ's promise is an abiding faith in Him.
From this point forward, Luther insisted that to doubt this doctrine was to disbelieve in Christ, and in the certainty of His promise, so that the very act of doubting would prevent the faithful believer from achieving salvation. For example, before his transformation, Luther in his Lectures on Romans  (1515-16) had cited the traditional text against the certainty of knowing salvation here on earth, Eccles. 9:1, and had acknowledged Aquinas' conclusion that in accordance with this text, "no one can know whether they possess justifying grace" (Summa Theologiae, 1a 2ae q. 112, art. 5).

But in 1518, he wrote, in his lectures on Hebrews (comment on Heb. 9:24):
[One must] treat with the utmost caution the opinion of those who apply this text [Eccles. 9:1] ... to the circumstances of the present moment so as to make people uncertain about the mercy of God and faith in salvation. For this is to overthrow completely Christ and His faith. 
According to Luther, before Christ came and made his promise as stated in Mt. 16:15, the sinner could abide only in the ambiguous uncertainty afforded by the Preacher in Ecclesiastes 9:1, and hence was doomed to be always in doubt. But after Christ's appearance on earth, there could no longer be any basis for uncertainty on the part of the believer, since Christ (corroborated by Paul) had promised salvation to everyone who believed in Him. Any such uncertainty made one unworthy of confessing his sins (uncertainty meant the Christian had doubt as to whether his confession and the priest's absolution could effectively operate to remit his sins), and thus disabled the doubting sinner from being the recipient of God's grace through his faith in Christ, as promised by Christ Himself.

For Luther after 1518, faith in Jesus Christ alone made certain the sinner's justification (being declared righteous before God), while any doubt that one could be so justified constituted a betrayal of Christ's solemn promise, and hence was a form of blasphemy. (There is much more detail on this point in ch. 4 of Prof. Rex's book; see also his own "95 Theses", posted here.) This severe, but very bright, line placed Luther on a collision course with the Church in which he both received and taught his faith. And when it led inevitably (due to Luther's intractability, and proclivity for hurling invective at his opponents, both Catholics and otherwise) to his excommunication from the Catholic Church, it sealed the fate both of that Church and of the millions who ever since have trusted Luther to show the way to salvation.

There is much more to be said about Luther's doctrine of salvation through faith alone. Notice, for example, that Christ in Mt. 16:15 made faith in Him a necessary, but not expressly a sufficient, criterion for the sinner to be saved. Christ affirmed was that it was essential for a sinner to place his belief (trust) in Christ to be saved -- so much is undeniable -- but He nowhere asserted that a sinner could be saved on the basis of his trusting faith alone. (Compare John 3:16, as well as numerous other passages in Paul, to the same effect.)

It was Luther -- seeking any plausible way out of his depression and anxiety over what he could do to be saved -- who read the word "sola" (alone) into the text of Matthew. In doing so, he transformed a necessary condition for salvation into an ostensibly sufficient one, and changed the course of religious history ever since. For who can be the judge (in this life) of sola fide in a believer, but that believer himself?

And thereon hangs another entire chapter of the Lutheran "Reformation". In order to put that chapter into context, it will first be necessary to examine a question which has been the topic of much recent scholarship: namely, whose faith is it that is a criterion for salvation according to St. Paul? Did St. Paul teach that it was the faith of the sinner in Christ that operated to save him, or did he mean that it was Christ's faithfulness to God's will that established the necessary precursor to everyone's salvation? That will be the topic I will take up in my next post.





Reformations and Transformations

1/11/2018 11:27:00 PM
A new year calls for a reassessment of one's direction. If it is -- nay, if it even appears -- unsatisfactory, the first month of the new year is the time to change it.

As readers here may have gathered, my enthusiasm for the topics formerly covered on this blog has waned markedly. The reason is also, I trust, equally apparent: this Curmudgeon finds no Schadenfreude in the decline of the West in general, or of America and her mainstream churches in particular. The road to perdition has been so well traveled over the centuries that chronicling its latest lost wayfarers engenders nothing new under the sun, no new lessons to instruct, no new dangers to warn against, and no new means of slowing or countering the decline. People who are fallen continue to fall, regardless, and there is nothing uplifting to observing (or reporting) man's never-ending attempts to replace, or to do without, God.

Indeed, to focus on man's efforts to "progress" is to look through the wrong end of the telescope. The concept itself is an illusion: thus an ant that crawls around and around on a giant sphere might be imagined to be driven by the notion that it is making "progress", i.e., getting somewhere. From the ant's limited grasp of the situation, it has indeed gone at one stage from point A to point B on the surface of the sphere. What it is incapable of perceiving, from its surface-bound perspective, is that both A and B are nothing more than points on a great circle that returns always to the point of "beginning", wherever that might be said to be.

Similarly, man with all his scientific instruments extends his reach through the physical universe farther and farther every year, but what he sees is what his instruments feed back to him -- which is something very dim at first. Then as the details grow sharper, he finally realizes that what is being reflected is the image of his own face, staring back at him from a mirror. Until he can enlarge his perspective to encompass the idea of things which he cannot see directly, he can discover, no matter how far he "sees," only himself.

For the new year, therefore, I resolve no longer to dwell upon (or complain about) events, institutions and people who illustrate, serve, or advocate that we (mankind) can do it all by ourselves. Such a misguided notion blinds us to the necessary humility occasioned by a proper and due respect for the unarguable (and highly uncomfortable, to many) realization that we are not here alone.

To the contrary: we are (and will be held) accountable to our Creator -- because the only alternative is to conclude that God's only son was either a liar or a madman, that his horrific death upon the cross was just another pointless act of man's unspeakable cruelty to man, and that all worship of the divine  is in vain. Those who have read my previous posts on the evidence that history and science offer in support of a divine Creator know that I reject that alternative as far more unlikely than the probability that Jesus was exactly who he said he was.

I speak as one who has been left behind by what I used to think of as a church to which I belonged, but which now I can no longer recognize. Its actions over the past forty years, as catalogued on this site, have become more and more un-Christian, to the point of suing innocent vestry members in court for punitive damages, worshipping Mammon more than Christ, and embracing abortion as a "holy sacrament." Most recently, it has adopted rites of same-sex "marriage" that openly and unashamedly liken such a relationship to that between Christ and his church. The rites have been provisional until now, but soon will become official and then later mandatory -- an episcopally sanctioned blasphemy that renders the denomination's entire purpose and function in this world null and void.

Looking back, I know how we got here: by focusing on man's needs and inclinations to the exclusion of God. Thus was it ever in the Church's history. Yet as G. K. Chesterton observed in The Everlasting Man (an ironic title, if ever there was one):
Christendom has had a series of revolutions and in each one of them Christianity has died. Christianity has died many times and risen again; for it had a God who knew the way out of the grave. But the first extraordinary fact which marks this history is this: that Europe has been turned upside down over and over again; and that at the end of each of these revolutions the same religion has again been found on top. The Faith is always converting the age, not as an old religion but as a new religion.
This passage places the emphasis on where I want to be over the coming year: taking courage from the resiliency of God's church, and not carping on the shortcomings of man's attempts to replace it. As I continue my search for a way to worship Him as I was taught so long ago, I have undertaken a study of where things went wrong, and why. Since this is the 500th anniversary of the start of the various Protestant Reformations, I began my study with Martin Luther's break with the church in which he grew up, and have branched out, forwards and backwards in history, from there.

I have no inkling, as yet, where this study will bring me out. But I think I could do worse on this blog than share with readers what I am learning as I make my way through it. At the very least, it promises fare that is more healthy and appetizing than what daily assaults each of us in the various media.

With the next post, therefore, we will start to try to understand the steps that led a theretofore faithful (but insecure) Augustinian friar to conclude that the Church in which he had both learned and taught had become one in which he could no longer discern a secure path to salvation.




Celebrating the Birth of Jesus Christ

12/20/2017 3:23:00 PM
As Advent slides into Christmas, I should explain my extended silence on this blog.

As for things Anglican, there is no joy in watching the Church of England fall apart under inept leadership and the pressures to conform doctrine to the Zeitgeist -- so I do not write about those events; you may learn of them from the Anglican blogs linked on the right.

As for church matters in America, there is likewise a dearth of stories to write about, because here, too, the Zeitgeist has pretty much taken over. The Episcopal Church (USA) is not a church anymore: it has adopted (and will soon make permanent) a liturgy that is blasphemous. Nor is it Episcopal, since it is not led by any Bishop (in the sense of 1 Timothy 3) -- no such bishop worthy of Paul's description would ever have allowed any such liturgical error to take place. Protestantism in general has not fared well since Martin Luther proclaimed that every person of faith was his own priest, and needed no guidance in reading the Bible. 

As for politics in America, the less said at this point, the better. We have not been such a divided nation since the days leading up to the firing upon Fort Sumter.

What else, then, is there to write about that is worth reading? In the past during the nativity season, I have done my best to offer the fruits of the most recent research into the events surrounding the birth of our Lord, and I cannot improve upon those posts now. You will find them listed and linked here.

Until the new year, then: A blessed and joyful Christmas to all ye of good will!

A Triumph of Injustice and Irresponsibility

11/20/2017 1:13:00 AM
In two orders mailed to the parties at the end of last week, the South Carolina Supreme Court announced the following rulings in the property dispute between Bishop Lawrence's Episcopal Diocese of South Carolina and the Episcopal Church (USA) joined by its rump organization there:

A. The motion to recuse Justice Kaye Hearn from the case was denied unanimously by all five Justices, including Justice Hearn herself. (Two justices concurred in the denial, but wrote separate opinions stating their reasons.)

B. The motion to grant a rehearing in the case was denied by a tie vote of 2-2, because Justice Hearn, in an act of what can be described only as hit-and-run, recused herself from deciding that issue (as well as from acting further in the case).

If evidence were needed to demonstrate the fecklessness of the justices who are responsible for the mess the South Carolina Supreme Court has made of its church property law in this proceeding, the latest pair of rulings on the petitions would suffice, all on their own. Consider the following facts:

1. There was never any decision of a majority of the Court in the case. In five separately written opinions, only two Justices (including Justice Hearn, herself an Episcopalian) agreed on reversing the decision below in order to hand all of the disputed church property to the Episcopal Church and its Potemkin diocese in South Carolina. Two Justices agreed on letting the decision below stand, albeit for different reasons. And the fifth -- Chief Justice Beatty -- simply punted by saying he would enforce a Dennis Canon trust (but not for the reasons stated by Justices Hearn and Pleicones) only against those parishes who had "acceded" to the national canons. (Never mind that virtually no parish had ever done so since the Canon's adoption in 1979, or that any such involuntary trust would have to be revocable at will under South Carolina law.)

2. All five of the Justices misunderstood the motion to recuse Justice Kaye Hearn. They appear to have regarded it as wholly independent of the motion for a rehearing, when it was not. The reason is that granting the request for a rehearing would have accomplished the same things requested again in the motion to recuse: the Justices would have been able to decide the case anew. Their prior opinions would be replaced by any new ones written on rehearing, and Justice Hearn's prior opinion would no longer be of any account. But they treated the motion to recuse just one Justice as a request to do all these things independently of any rehearing, which makes no sense, and appeared to congratulate themselves on their unanimity in striking down a straw man.

3. Thus they each (including Justice Hearn herself!) ruled that the motion to recuse came too late, since the full Court had already rendered its non-decision in the case. The motion to recuse, however, was aimed only at her future participation in the case; the past is water under the bridge, and could be corrected, if at all, only by granting a rehearing. (For her part, Justice Hearn mooted the motion to recuse by announcing on her own that she would not participate in further proceedings in the case.)

4. But not before voting to deny the motion to recuse! (So she did not withdraw from all further matters in the case.) She waited until she could see which way the rehearing votes were going to fall on the part of the other four Justices, and then grandly announced she would recuse herself only from participating in the decision to grant rehearing.

5. The reason she could make that gesture is that when she saw that the Court would still be divided 2-2 on granting a rehearing, she knew that her participation in it would not make any difference to the outcome she wanted: a 2-2 tie vote operates to deny a pending motion just as much as does a 3-2 majority vote to deny it. Cynically, therefore, she could get away with appearing to be "noble" and no longer involved -- while ensuring by her recusal the outcome she wanted all along.

6. The great unanswered question in these shenanigans is only hinted at by Justice Kittredge, who states in his concurrence in the recusal order the following:
For the purpose of resolving the rehearing petitions, I requested that a fifth justice be appointed to fill the absence created by Justice Hearn's recusal so that a full Court could decide this matter of great importance. My request was rejected, which I find shocking. Under these circumstances, to disallow a full Court from considering the rehearing petitions is deeply troubling and, in my judgment, raises constitutional implications as the Court has blocked a fair and meaningful merits review of the rehearing petitions.
The question is: which Justice(s) voted or decided to deny the request to appoint a full five-person court? From the lack of any written ruling or order made upon Justice Kittredge's request, it would not appear that there was any vote taken. Instead, the decision appears to have been made by the Chief Justice, acting on his own authority. (A court rule that operates in the case of a recusal by a justice facing disciplinary charges gives the Chief Justice that duty, but it is mandatory -- he must name a replacement.)

But by what authority? I could find no rule of court that was directly applicable to the situation, but South Carolina has a statute which reads as follows:
SECTION 14-3-60. Procedure when justice cannot preside in cause; special justices.  
In case all or any of the justices of the Supreme Court shall be disqualified or be otherwise prevented from presiding in any cause, the court, or the justices thereof, shall certify the same to the Governor of the State, and he shall immediately commission specially the requisite number of men learned in the law for the trial and determination thereof.
Why, then, could not the Court have certified the lack of a full court to the Governor so that he could have named a replacement? Again, the language of the statute is mandatory: the Court has no discretion to ignore it. No wonder that Justice Kittredge is so shocked.

This mystery just adds to the bafflement of outside legal observers in trying to explain what is really going on inside the South Carolina Supreme Court. Whatever is going on is not pretty, and ought to be highly embarrassing to all members of the South Carolina bar. (Perhaps one of them will venture here to dispel our curiosity as to why the statute just quoted was not followed in this case. Is the reason that the word "presiding" in the statute is taken as referring only to cases when the Chief Justice is disqualified, as opposed to applying to any Justice who had been sitting on the case? But why would that be? In both cases, the Court is left with four justices who can divide evenly as they did in this case, so that a fifth justice to resolve the split is highly to be desired.)

In any event, the more outlandish this case gets with each successive month, the more it cries out for redress by some higher authority. The Episcopal Diocese says it is contemplating asking the United States Supreme Court to review what has now become an egregious denial of due process guaranteed by the federal constitution -- it has virtually no other alternative left to it.

For their part, the response of the ECUSA parties to these latest developments is downright macabre. Here is Bishop Skip Adams, speaking in a public statement issued after the two latest rulings:
We give thanks for the clarity that the State Supreme Court’s decision provides and we are grateful for the thoughtful and difficult work the justices have undertaken in this case. . . .
Clarity?? You give thanks, Bishop Adams, for the Court's clarity??? Could you, perhaps, try to be a little more clear in what you mean by that statement?

With Sophocles (Antigone, vs. 620-23), I can only say: τὸ κακὸν δοκεῖν ποτ᾽ ἐσθλὸν τῷδ᾽ ἔμμεν' ὅτῳ φρένας θεὸς ἄγει πρὸς ἄταν.





Is It Man over God, or God over Man?

10/26/2017 3:03:00 AM
This is an outstanding homily on last Sunday's Gospel reading recounting Jesus' skill in handling the Pharisees and the Herodians who tried to entrap him on the payment of taxes to the government (Mt 22:15-22). The Very Rev. John Lankeit, dean of the Cathedral of Ss. Simon and Jude in Phoenix, Arizona, shows Christians how to use Jesus' logic to refute the trick assumption behind the question: "Do you believe in gay marriage?"




The key is not to be distracted from the main issue: in speaking of marriage, what is man's, and what is God's? Since God defined marriage and gave it to man at the very beginning of his existence on Earth, it is not for man to redefine that institution. The most that man can do is establish his own secular arrangement of -- call it civil partnership, or civil union -- which the State has the power to define any way it wants.

The latter is all about the ownership of property in common, health and other employee / survivor benefits, the rights to hospital visitation, titles on official certificates, and the like. All those things belong to the State (i.e., are "Caesar's") to confer in the first instance, and as such may properly be handed over by man back to the State to regulate, specify and define. And just as Jesus taught, the church on Earth has no sway over the State, whose rulers eventually must answer to God in Heaven.

Marriage, however, is by God's definition (Gen. 1:27) between a man and a woman, each of whom is made in God's image. Just as it was proper to render to Caesar one of his own coins stamped with his image, so the only thing that is appropriate in marriage is to have it conform to God's will revealed to us. We are thus bound recognize it as a divinely blessed union between two humans stamped with his image -- one male, and the other female. All else is usurpation, and an inversion of roles: an attempt by man to play being God.

That is why the Supreme Court's decision to redefine marriage in Obergefell v. Hodges is no valid decision at all. It is five actors in black robes playing at being God.




A Pyrrhic Victory in San Joaquin

10/24/2017 1:29:00 PM
What would you say of a trustee who spent $6.8 million of his trust fund's money to recover just $1 million? Is that a healthy example of how a fiduciary should carry out his duties?

You probably already guessed before I tell you: the trustee in question is the Episcopal Church (USA); the trust fund is ECUSA's endowment (some $366 million as of the end of 2016); the $6.8 million was loaned by ECUSA's Executive Council to the Episcopal Diocese of San Joaquin to keep it propped up during its ten-year lawsuit to "recover church properties"; and the $1 million is all that the Diocese of San Joaquin is now able to repay after having been handed more than 25 properties by the crazy California courts.

And actually, those figures are not even half of the San Joaquin iceberg. For as I carefully estimated from all sources and after reviewing ECUSA's budget for the current triennium, ECUSA's litigation machine has spent a good $40 million on just legal expenses in the first six triennia of this century (it began its career of suing parishes and dioceses in 2000). Because the two longest-lasting cases to date have been in California, it would be fair to allocate, say, $8 million of that total to the legal expenses of ECUSA in connection with the San Joaquin lawsuit (recounted in considerable detail in these pages, since yours truly was a participant).

That fact, accordingly, reduces the final return even more: ECUSA spent nearly $15 million to recover $1 million, after all is said and done. That is a pretty egregious fiduciary record under anybody's yardstick.

And what of the plaintiff diocese itself? The ENS story of last week's actions by the Executive Council contains these observations:
Council member Russ Randle, while earlier presenting the loan forgiveness resolution, said Episcopalians “faithfully persevered” through what turned out to be nearly a decade of eventually successful property litigation. There are now 25 properties that will be sold and 21 “viable” congregations, he said, but the latter are struggling financially. There are two paid full-time clergy in the diocese, along with retired clergy and clergy who work full-time but earn part-time salaries. Randle called the loan forgiveness a “significant investment in this diocese.” 
Two full-time clergy; one part-time bishop; and those who volunteer some or all of their services -- all to care for 21 congregations described as "viable". (The only reason they have $1 million in cash to repay ECUSA is that the arbitrary and ignorant judges on the Court of Appeals, without any discussion or reasoning on the point, simply handed them all the money the former diocese under Bishop Schofield held in its investment trust accounts at Merrill Lynch.) Good luck with selling 25 used churches while you maintain them in the meantime -- all because you drove out the congregations that had been paying and caring for them all along.

And as for making "a significant investment in this diocese"? Please spare me. You already pumped $6.8 million of lifeblood into that turnip, and now you are simply acknowledging that you can't get any more blood out of it.

After losing nearly all of his army in defeating the Romans twice, the Greek general Pyrrhus (319/318 - 272 BC) is reported to have said: "One more such victory and we shall be ruined." It sounds as though ECUSA has little to distinguish it from Pyrrhus -- just more dollars to burn than he had soldiers.

P.S.: In light of the above, you should now re-read the first part of the linked ENS story about how ECUSA's budget for the next triennium will have to slash funds for evangelism by 41%. The new proposed figure -- $ 3.5 million over the next three years -- is less than half of the amount they claim to have used for evangelization in the Diocese of San Joaquin.

Judges Who Are Indifferent to Injustice

10/8/2017 5:05:00 PM
Perhaps none of my readers in South Carolina will be surprised to learn that two former colleagues of South Carolina Supreme Court Justice Kaye Hearn, both retired judges who sat with her for many years on that State's Court of Appeals, have appeared as "friends of the court" (amici curiae) in the Episcopal Church case on her behalf. That case (Protestant Episcopal Church in the Diocese of South Carolina et al. v. The Episcopal Church et al., No. 27731, August 2, 2017) has been the subject of four of my last seven postings here (report of decision, first critical observations re: bias of Justice Hearn, summary of grounds for her disqualification, and summary of grounds for granting a rehearing).

Now come the Hon. William T. Howell and the Hon. H. Samuel Stilwell, retired from the Court of Appeals, to argue to the Justices of the State Supreme Court that (a) the motion to disqualify Justice Hearn comes too late for it to be acted upon, and (b) in any event, no foul has occurred -- there has been no violation of due process, because their former colleague did nothing wrong by deciding the case as she did. Oh, and did I mention that the signer (and presumably principal author) of the brief for the amici curiae is Matthew Richardson, who served in the past as a law clerk to Justice Hearn?

In support of (and attached to) this brief are two affidavits. The first is from Rebecca Lovelace, a witness who testified at trial on behalf of those claiming all the properties of the withdrawing parishes, who is a long-time personal friend and fellow parishioner of the Justice and her husband, George Hearn, and who was on the steering committee that organized the appellant Episcopal Church in South Carolina (ECSC). The second affidavit comes from Prof. Gregory B. Adams of the University of South Carolina School of Law, who does not, however, disclose that he himself is a member in good standing of the parish of Good Shepherd in Columbia -- which, as a constituent of the Diocese of Upper South Carolina, has remained in ECUSA.

So one would expect to read a thoroughly impartial and unbiased series of legal documents, right? And if that is what you expect, then you might as well stop reading right now.

Earlier, I analogized Justice Hearn's role in this case to that of a member of a golf club who sees nothing wrong in sitting as judge over a property dispute that results in the transfer to her own club of millions of dollars of real estate titled in the name of a competing golf club. If that analogy holds up, then I will liken the filing of this amicus brief to testimony offered in her support, in a proceeding against the judge to disqualify her for bias, by four members of the judge's same club. And that is not also bias?

Their arguments are smooth, and read well on the surface. What gives their game away, however, are  the points to which their specific arguments are addressed -- in every case, they are not the real points at issue. They instead are a series of straw men, carefully erected only for the purpose of being able to knock them down.

Take, for example, the first detailed argument they make (brief [p. 7] at Adobe Acrobat p. 18): they claim, citing only cases involving federal law, that a motion to recuse is untimely if not made before a decision is rendered by the judge being challenged. While the cases cited do so hold (interpreting federal law and rules), that is not the point at stake.

The motion to recuse Justice Hearn is directed at her ability to sit as judge on the decision whether to grant a rehearing. That decision has yet to be made; neither she nor any other justice has yet written any opinion on the point. So the argument that the motion is "untimely" is nonsensical. If it is untimely to move to disqualify a judge before the judge makes a decision, then every motion to disqualify would be "untimely."

Neither the amicus brief, nor the earlier return to the petition for recusal filed by ECUSA and ECSC, addresses this argument, which is the only one actually made by Bishop Lawrence and his parishes. And there is, as just demonstrated, no rational answer that can be made to the argument. A motion to recuse a judge filed before that judge acts on the question for which she is disqualified can never be "untimely."

In effect (although amici do not say so), the amici (and ECUSA/ECSC) are arguing that Bishop Lawrence and his attorneys waived any right to challenge Justice Hearn for bias because they waited until after she had ruled in the main case, when they could have stated many of their same grounds for disqualification two years earlier, before the oral arguments. But this is likewise not a valid argument. For instance, had the decision turned out 4-1 against ECUSA/ECSC, with only Justice Hearn dissenting and voting to overrule the All Saints Waccamaw decision (see my earlier post on that), then any motion to disqualify her would have been moot, pointless, and a waste of everyone's time.

One can never, moreover, be held to "waive" a justice's bias or personal interest -- it would be akin to waiving any objection to a person who says he wants to wound you. But one can certainly expect, and even demand, that a justice refrain on her own from ruling on a case in which she is biased through personal interest. Bishop Lawrence's attorneys, as I argued in this earlier post, were entitled to assume, once it became evident (after argument and conferencing) that hers would be the deciding vote in causing the half-a-billion-dollar transfer of church property, that Justice Hearn would certainly recuse herself, even if that meant the case would have to be reargued.

So the amici's first argument is a non-starter. What else do they argue? Well, once again they proceed to set up a giant straw man, just to demonstrate how skillfully they can knock him down. (The technical term for this rhetorical sleight-of-hand is ignoratio elenchi, and lawyers are trained in how to spot it, because other lawyers are constantly abusing the legal process by resorting to it.)

Their second argument is perhaps more subtle, but every bit as fallacious, as the first. They contend that Justice Hearn's biases were not sufficient to produce a "due process" (i.e., 14th amendment) violation, and so therefore it follows that not only does she not have to recuse herself, but that the litigants whose rights she violated have no right to ask that she recuse herself for the future, either (amicus brief, pp. 10-13 [Acrobat pp. 21-24]). By the very way it is carefully constructed, this argument confuses a constitutional right (to have a fair trial) with South Carolina's statutory prohibitions against judges sitting on cases in which they have a personal interest.

The two rights are not the mirror image of each other, as the argument tries to claim by equating them. A due process violation raises a federal question -- one which, for example, could be used to ask the United States Supreme Court to review the case. The state prohibitions against bias in the judiciary have an object in addition to preventing constitutional violations: they are intended to preserve public confidence in the integrity of the judiciary.

This is what makes so deplorable the spectacle of two retired judges arguing to their own Supreme Court that it does not matter if Justice Hearn could have recused herself, because even if she acted out of personal bias, she did not violate the 14th amendment rights of Bishop Lawrence and his diocese. "Who gives a fig for your integrity?" they seem to be asking. "As long as your behavior does not amount to a federal due process violation, you are just fine, no matter how bad it may look to the public."

Notice also how this second argument avoids the main issue again, which (to repeat in bold) is whether Justice Hearn should rule on the pending petition for rehearing. In effect it claims that because (the amici assume) she has not yet committed a constitutional violation, she should be perfectly free to go on trying. (As the football cheer says: "Hit 'em again, hit 'em again, harder, harder!")

Another indirect argument the amici are making is that there really should be no rehearing granted -- because Justice Hearn and her concurring colleagues got it right the first time. But as before, that argument at this point is improper. It is nominally addressed to the merits of the petition for rehearing, but it does not deal with those merits. Instead, it tries to skirt around the question by saying there is no real need to decide it.

The remainder of the amici's arguments amount to similar attempts at ignoratio elenchi. Take, for instance, their response to the point that as far as Justice Hearn was concerned, her old parish of St. Paul's Conway would have to turn over its property along with all the other thirty-six parishes involved in the case. Unlike Chief Justice Beatty, Justice Kittredge and Acting Justice Toal, Justice Hearn was willing to decide that all 36 parishes (including St. Paul's) were bound to hold their properties in trust for the national Church whether they had acceded to the national Canons or not. She wrote (Adobe Acrobat opinion, p. 30):
In my view, the National Church is correct in its assertion that even without these individual reaffirmations made post-Dennis Canon, the relationships between the National Church and the parishes reveal that an express trust exists, created as the majority envisioned in Jones v. Wolf.  
(And in default of an express trust, she was even willing [see p. 31] to impose a constructive one -- a judge-created remedy in cases of outright fraud.)  

Amici feel it is a sufficient answer to this point to observe that the Court's decision resulted in St. Paul's being one of the seven churches that are allowed to keep their property, and so Justice Hearn could have no "personal interest" in the outcome of the case. Well, that result is no thanks to Justice Hearn! She, as she wrote, was fine with a judgment that would have ordered her former parish to surrender all of its property to the organization to which she belongs. And yet the amici can say with a straight face that her decision does not show any "personal interest" she has in the case?

Amici also make no answer to the detailed evidence of bias and personal interest which anyone in knowledge of the actual facts can draw from Justice Hearn's own opinion, as explained in the petition for recusal and in my earlier post. She was the only Justice who felt it necessary to go into extraordinary (and erroneous) detail about fiduciary violations by Bishop Lawrence to his former church -- which are not violations that can be dealt with in the civil courts, since they present wholly ecclesiastical issues.

Hearn's overweening bias is thus shown by her willingness to address such matters on the merits, while at the same time urging that the trial court got it wrong when it steadfastly refused to defer to  the national Church's "ecclesiastical determinations" in holding that Bishop Lawrence's entities properly withdrew from ECUSA under State law. For Justice Hearn, in other words, Episcopal Church law trumps every State law, because she regards that Church as "hierarchical" (a red-herring issue, if ever there was one, in a State that adheres to neutral principles). And that is not evidence of her Episcopalian bias?

In sum, the arguments advanced by those trying to defend Justice Hearn focus all too much on what is past, and not on what is to come. Having been thus challenged for excessive bias, how can she (or they) claim a right not to have to deal with the challenge, and to go right on as though no challenge had been made?

It is a sad day for judicial integrity in South Carolina when its present and former judges are so concerned to circle the wagons around one of their own that they are willing to let half a billion dollars' worth of charitable property change hands for reasons on which no three of them could even agree. If the fact that the Hon. William T. Howell and the Hon. H. Samuel Stilwell were willing to have such a brief filed on their behalf is any indication of the respect that South Carolina judges have for their own integrity, then what can one expect from the South Carolina Supreme Court? And even if Justice Hearn withdraws from any participation in deciding the petition for rehearing, what guarantee can there be that a truly neutral fifth justice can be appointed to resolve any tie?

All eyes are now upon the justices of the Supreme Court of South Carolina. May they do the right thing, see through the hollowness of the arguments in defense of Justice Hearn, and in the end provide the parties with the fair and impartial tribunal that they deserve.





Faults in the South Carolina Decision Laid Bare (II)

9/3/2017 6:55:00 PM
[Note: For background to this post, please read its predecessor here.]

After the Motion to Recuse and Vacate discussed in the previous post, the petition for rehearing heaps on many more reasons why the South Carolina Supreme Court should place no confidence in its divided result in the Episcopal Diocese of South Carolina case. To a certain extent, because the reasons in the motion to disqualify Justice Hearn are so strong and irrefutable, the reasons the petition gives for rehearing are ancillary.

For as demonstrated in my previous post, if Justice Hearn should have disqualified herself under the applicable Judicial Canons of South Carolina, then the only remedy for her violation of those canons would be to grant a rehearing of the entire case before new and untainted justices.

Rehearing is required, flat out, because respondents' due process rights to a fair and impartial tribunal were grossly violated. But rehearing would be required in any event because the bias injected into the proceedings by Justice Hearn tainted not only her conclusions, but those of Acting Justice Pleicones and of Chief Justice Beatty, as well.

In a nutshell, the fault exposed by the petition for rehearing is this: there is no 3-2 majority, or any majority, of the Court that is united in favor of any reasoning for any result that is dispositive of the entire case. When a court has failed properly to dispose of the whole case before it, it must grant a rehearing to clarify what it meant by its original decision.

Let me restate that observation, in terms a lay person can understand. To have an effective decision from a court of law in which a panel of multiple justices participates, there has to be a majority of the participating justices who each concur in (agree with) the result that necessarily follows from that concurrence. And in this South Carolina decision, an analysis of the separate opinions shows conclusively that while three justices out of five may concur in one given result, they differ fatally in what process gets them to that result.

With no clear majority agreeing on the approach the Court (through its supposed majority) is laying out, the picture is the same as if three bettors at roulette won money when the ball landed on Red 34, because the first bet on "red", the second bet on "even", and the third bet on "34". There is consensus only in result, but not in how you get there. And basic due process requires courts to explicate their reasoning for reaching a given result.

When the result is shown to have been clearly mistaken (i.e., the ball actually landed on Black 15 next to Red 34, or even on Black 22 on the other side -- which means that at a minimum only one bettor out of three could collect), the so-called "plurality" consensus fails, and there remain only the separate reasonings to get to that result, which do not unite or agree in any way.

This is the problem with the opinions as rendered by the South Carolina Supreme Court in the Episcopal Diocese of South Carolina case, and it is the key to a lay person's understanding of the issues presented by the petition for rehearing. So let us proceed to the particulars.

Let us start with the so-called "lead" opinion of Acting Justice Pleicones. As will be shown, his opinion is factually inaccurate, grossly misleading, and blatantly result-oriented (in disregard of binding precedent from prior decisions by the same Court).

The first thing to note is that A. J. Pleicones announces that the "standard of review" for the case is in "equity" (Opinions, p. 4 [Adobe Acrobat numbering], at n.1; I will explain what that means in a moment). While the unconstitutionally biased Justice Hearn agrees with him (Opinions, p. 21 [concurring "fully" in the opinion of A.J. Pleicones]), no other Justice does so, and two dissenting Justices (Toal and Kittredge) argue that the standard of review is "one at law", not equity (Opinions, pp. 55-57, and 39 at n. 31).

For his part, Chief Justice Beatty in his opinion makes absolutely no mention of the standard of review which he thinks applies to the case, although he states that he "disagree[s] with the analysis of the majority" (Opinions at 36; emphasis added), so presumably he rejects the equitable standard of review, as well. This means that there are, at best, only two Justices who agree on the applicable standard of review.

An appellate court always specifies the "standard of review" under which it will decide the case before it. That phrase describes the standpoint from which the higher court will review what is in the record from the court below.

For South Carolina courts, the two standards mentioned ("in equity", and "at law") entail two very different procedures in the reviewing court. Under an equitable standard, the appellate court examines the entire record anew, from scratch ("de novo"), and is free to make its own factual findings and conclusions of law that may vary from those of the trial court.

But under a standard of review "at law", the appellate court is bound by the findings of fact made by the trial court which are supported by at least some modicum of trustworthy evidence in the record (such evidence is frequently called "substantial evidence", though the term implies only that the evidence must be at least sufficient to justify a greater than 50-50 belief in its probable veracity).

From what the separate Justices state in their opinions, it has to be concluded that only two of them (Pleicones and Hearn) were in favor of disregarding the findings of the trial court, and of starting anew from scratch. The other three apparently believed that the trial court's findings of fact were binding upon them, subject only to a substantial evidence requirement in support.

This analysis shows that Pleicones and Hearn stood alone in their free-ranging substitutions of their own factual findings in place of those made by the trial court. But two votes out of five do not make for a majority in that respect. Therefore it is folly to regard the "lead" opinion of A.J. Pleicones as stating anything other than the individual views of the case by himself and Justice Hearn.

In other words, there were three votes out of five (a majority) to regard the trial court's findings of fact as binding upon the Supreme Court, rather than subject to de novo review. This analysis alone should give pause to those who triumphed in announcing that they had prevailed by a 3-2 vote.

In his separate opinion concurring partly in those of Justices Hearn and Pleicones, Chief Justice Beatty voted in favor of reversing the trial court's legal conclusion (following the rule handed down in the Waccamaw case -- see the previous post) that the Dennis Canon could not create an effective trust in South Carolina. Instead, C.J. Beatty concluded that the Canon, in combination with the individual parishes' supposed "accessions" through their corporate articles and bylaws, operated to create a binding and irrevocable trust on their properties in favor of the national Church and its diocese, as a matter of law.

This conclusion, as just noted, was one of law, not of fact. So the adjudicatory effect of Chief Justice Beatty's opinion depends upon his application of the law to the trial court's factual findings (which were binding upon the three members of the appellate court who rejected the "equity" standard of review). The problem that underlies Chief Justice Beatty's legal conclusion is that it rests upon certain assumptions of fact that were contrary to those found by the trial court (e.g., that the various "accessions" signed by the individual parishes were informed enough to operate as a consent to the creation of a trust that was legally recognizable ["cognizable"] under South Carolina law).

A good part of the petition for rehearing (pp. 18-22, and 24-31) is devoted to a detailed showing that there was never any express consent by the various parishes, under the specific wording of their so-called "accessions" to the national Church's canons (including its Dennis Canon after 1979), that would be sufficient under South Carolina trust law to create any kind of trust in favor of ECUSA and its local diocese in those parish properties.

Justice Beatty does not address these discrepancies -- he was unaware of them, since the documents were not made part of the record on appeal (because ECUSA never raised any appellate issue involving them). Justice Beatty apparently relied for his conclusion on the unsupported assertions of ECUSA's attorneys, made in a post-trial motion for reconsideration, that all the subject parishes had "acceded" to the Dennis Canon. He simply delivers an omnibus ruling that the standards for trust creation were met in the case of parishes who "acceded" to the national canons (i.e., according to the representations of ECUSA's attorneys -- which were not evidence in the case).

The petition for rehearing shows, as just noted, that Justice Beatty's assumed factual basis for his decision is fatally flawed, along with the consequences he draws from his unjustified assumption. So what is left of his concurring opinion? If he truly wants to address the discrepancies identified by the petition for rehearing, he will concede that it is correct. Only an irrefragable personal pride in one's output would keep a conscientious justice from admitting that he made a mistake, and from voting to reconsider the Court's decision.

A particularly poignant observation is necessary here, in light of the fact that Chief Justice Beatty was the only Justice to address the specific fate of Camp Christopher, a long-held diocesan property that serves as a conference center and clergy retreat for Mark Lawrence's diocese. He stated in a footnote to his concurring opinion:
The conveyance of Camp St. Christopher was for the explicit purpose of furthering "the welfare of the Protestant Episcopal Diocese of South Carolina." In my view, the disassociated diocese can make no claim to being the successor to the Protestant Episcopal Church in the Diocese of South Carolina.
The petition for rehearing (pp. 34-35) refutes this unwarranted (and unsupported) conclusion on the basis that the trial court never found, and the appellants never argued on appeal, that they were the "successor" to the Protestant Episcopal Church in the Diocese of South Carolina. Justice Beatty seems to have reached this conclusion entirely on his own initiative, with zero evidence in the record and zero contentions on appeal to support it. (Associate Justice Pleicones fell into the same trap under his pseudo-"hierarchical" finding -- see his opinion at p. 18. Since, however, the Dennis Canon has no application to property held by a diocese, his conclusion about its validity as to parishes has no bearing on the title to Camp Christopher.)

Such diaphanous cloth appears to be the material from which the Supreme Court of South Carolina weaves its fantastic decisions (at least when it is not wisely advised). Chief Justice Beatty's gratuitous footnote was not joined in by any other Justice -- no one else so much as mentioned Camp Christopher in their opinions. Accordingly, it would be a stretch to claim that his footnote serves as the basis for a 3-2 decision to transfer title to Camp Christopher to ECUSA.

All these minor points, however, are but appetizers for the main course. For the opinions of a minority of two of the South Carolina Justices (Hearn and Pleicones) are being touted by those ignorant of precedent as the basis for a wholesale overturning of South Carolina law on the topic of religious property disputes.

I hesitate to go here, because there is so much ill-informed opinion out on the Web about what "neutral principles" means in the context of disputes between religious factions over the ownership of and title to religious property. The best I can do is what I have already done: please visit this earlier post and its links before wading into these murky waters.

If you have absorbed what is in those earlier posts, congratulations! You will then be able to see just where A.J. Pleicones (and Justice Hearn, too, of course) went astray in giving lip service to "neutral principles" while in fact taking us back to the 19th-century doctrine of "deference to ecclesiastical authority." They want nothing to do with "neutral principles", because they like creating "special principles" applicable only to a category of church denominations they find to be "hierarchical."

In so doing, they stand the First Amendment on its head, by "establishing" ECUSA as a special church in our legal system that, in order to placate Justice Blackmun's "minimal burden" standard under Jones v. Wolf, is able to create a binding and irrevocable trust across all State borders and regardless of the fifty States' individual trust laws by the adoption of a single bylaw. Such "deference" to a national church has precisely the effect of doing what the Establishment Clause forbids. It gives to ECUSA a status that favors it over all secular organizations, and many other religious ones, as well.

Moreover, there are a number of other problems with A. J. Pleicones' and Hearn's approaches that they simply overlook, and fail to deal with:
  • First, ECUSA did not follow Justice Blackmun's advice and embody a trust in its governing constitution (which would require at least four years to amend). It fudged, by passing just a canon (bylaw), which can take effect immediately, and which Jones did not sanction.
  • Second, they ignore all the undisputed evidence that ECUSA's General Convention is just a legislative, and not an adjudicatory body. It passes laws (resolutions), and decides no disputes of any kind (other than who is entitled to a seat and vote). Indeed, there is zero evidence for the claim that ECUSA has any kind of "highest adjudicatory body" at all. So there is no body, or adjudication, to which a court must defer.
  • Third, the Dennis Canon trust cannot be "irrevocable", because General Convention may amend or revoke it unilaterally at any time it chooses. A trust that can so be amended or revoked is not "irrevocable." Moreover, making it irrevocable by any actions of a parish or a diocese creates its own problems with the First Amendment, since if deciding what to do with church real property is part of the "free exercise of religion" and so beyond civil adjudication, then placing limits on what parishes and dioceses may do with their own properties is an infringement on their free exercise rights.
All these arguments, and many more, are in the petition for rehearing. It does not merely "restate [Plaintiffs'] earlier arguments to the Court", as I saw one blogger describe it. The reason it does not is that the "majority Justices" themselves departed so freely in their several opinions from exactly what the parties had submitted to them in the record of the case and in the briefs on appeal.

The best conclusion to this discussion is the one in the petition itself (pp. 36-37):
The majority has fashioned a neutral principles standard for religious organizations under South Carolina property, trust and corporate law that admittedly would not be applied to secular organizations. It then applied it to religious organizations today in a fashion it did not do 8 years ago involving the same issues between the Plaintiff Diocese, The Episcopal Church and a parish church. It does so when no appellant asked the trial court, either during trial or post trial, to apply such a standard. As a result, the majority would transfer the real and personal property of South Carolina religious organizations, many of which preexisted The Episcopal Church and the United States, to a New York religious organization. This establishment of one religion over another impacts the choices these South Carolina religious organizations (and those associated with them) made in the free exercise of their religion. They chose to disassociate, exercising their right of association under the United States and South Carolina Constitutions which this Court has recognized. Yet, according to the majority, that constitutionally protected decision requires a massive transfer of centuries old real and personal property when it would not be required for a secular South Carolina organization.
Indeed. The "decision" is not a real decision at all. It is fractured beyond understanding; it is ambiguous, confusing and contradictory; and biased beyond all measures of impartiality and fairness. It needs to be wiped from the books, and a fresh start made with an impartial tribunal.






  

Faults in South Carolina Decision Laid Bare

9/2/2017 3:41:00 PM
In two separate court filings yesterday, the attorneys for Bishop Mark Lawrence, the Episcopal Diocese of South Carolina and twenty-nine parishes -- who had been told they must hand over their properties to the national Church (ECUSA) and its ersatz "diocese" (ECSC) -- laid bare the severe faults and conflicts of interest that permeate the bitterly divided 3-2 decision on August 2 by the South Carolina Supreme Court.

The first filing is a 37-page petition for rehearing that systematically points out the huge flaws and legal errors in the 35 pages that comprise the majority decision.

The second filing is a motion addressed to the four current justices of the Supreme Court (minus Justice Kaye Hearn, who is requested to recuse herself from sitting in judgment on herself). It seeks to disqualify Justice Hearn from participating further in the case, and to vacate her overtly biased opinion that resulted in a loss for twenty-nine parishes. Alternatively, it asks that the Court vacate all five separate opinions and rehear the appeal with (if necessary to resolve a tie vote) a specially appointed fifth justice to sit in place of Justice Hearn.

These amount to quite a lot of legal substance to digest on a Saturday morning. But the filings deserve your serious attention, and I will do my best to make them understandable to you. Because it is the key to collapsing the entire rickety structure represented by the Court's divided opinion, I shall take up the motion for recusal and vacation first in this post, and then follow it up with another post on the reasons for rehearing.

The bottom line of this devastating motion is simple: Justice Kaye Hearn had no business sitting on the panel that heard and decided this case, and should have recused (disqualified) herself at the outset of the appeal. The evidence shown for her bias goes far beyond what your Curmudgeon wrote about in the post linked above (which was bad enough): it leaves now no room for doubt on the question. (The page references below are to the pages of the document numbered according to the Adobe Acrobat program -- plug a number into the box, and Acrobat will take you to that page.)

The motion begins its factual presentation with this overview (p. 5):
This case has been challenging emotionally, spiritually, and financially to thousands of people in South Carolina. One of those people is Justice Hearn. Like all of her current and former fellow parishioners, this dispute was and is important to Justice Hearn. However, only a limited number of those people were actively engaged in the debate of the underlying issues. An even smaller handful of people left their parish homes and started new parishes because of the issues involved in this case. One of those people is Justice Hearn. This case was important to Justice Hearn, and she and her husband were actively involved in the debate of the issues and were leaders in developing a new parish after leaving their prior one. Over several years, Justice Hearn developed opinions, advocated for these opinions, and took action based on the outcomes of decisions central to this case. These actions are to be expected by any interested parishioner. However, they should have led Justice Hearn to publicly disclose them, and she should not have rendered judgment in this case.
Bias against her former parishAs is well known, Kaye Hearn and her husband George were long-time members of St. Paul's, Conway. They left in 2013, after that parish voted to remain with Bishop Lawrence's Episcopal Diocese. Before they left, however, they were both vocal in their opposition to the direction in which Bishop Lawrence was going, and differed publicly with St. Paul's rector on a number of occasions (pp. 5-6, and 30-33). It should be noted that if Justice Hearn's written opinion had become the majority decision, it would have resulted in her former parish of St. Paul's having to turn over all its real and personal property to her new parish of St. Anne's. Could a conflict be shown more directly than that?

Support for the Episcopal Forum. As I documented previously, Justice Hearn was a continuing member of the Episcopal Forum of South Carolina since at least March 2007.  According to its mission statement on June 25 of this year (p. 111 -- the Forum's website has since been purged of this and all similar materials, and also of its public membership lists),
The mission of the Episcopal Forum is to support The Episcopal Church in South Carolina, The Episcopal Church and the worldwide Anglican Communion by providing support and educational offerings . . .
The first two entities named in the statement of support are precisely those who Justice Hearn decided were legally entitled to all of the properties of those parishes with whom she disagreed as a Forum member, and as a member of a parish in the Episcopal Church of South Carolina (ECSC). What better witness of support for them could she give than voting to hand over to them about half a billion dollars' worth of real estate?

Moreover, the Forum -- stating it had the backing of all its individual members -- wrote in 2007 and again in 2010 (pp. 103-07, and 177-86) to the bishops in ECUSA and in Province IV (which includes South Carolina) setting out its concerns about and disagreement with Bishop Mark Lawrence over the very actions which would form the basis for the later attempts by the national Church to discipline and remove him -- actions which Justice Hearn likewise criticized and attacked in her decision. In 2012, the forum published on its Website (pp. 188-91) a legal critique of the South Carolina Supreme Court's unanimous decision in 2009 in the All Saints Parish Waccamaw case. The document reads like a precursor to Justice Hearn's (highly biased) reasons given in her 2017 opinion for voting to overrule that decision.

Her Husband's Involvement in the First and Second ECSC Conventions

Justice Hearn's husband, George, served as a delegate for his dissident parishioners to both of the early conventions in 2013 that launched the Episcopal Church in South Carolina. As a delegate, he voted to nullify the resolutions and amendments to diocesan governing documents which had been approved by the most recent diocesan convention under Mark Lawrence, yet his wife saw no difficulty in sitting in judgment over the validity of those resolutions and amendments on appeal (pp. 115-17).

He also voted to elect Bishop Charles vonRosenberg, who promptly sued Bishop Lawrence in federal court claiming that he, not Bishop Lawrence, owned the trademark and seals of the diocese. Later, in response to Bishop Lawrence's preemptive move that kept ECSC from carrying out its plan to sow confusion by insisting that it had the right to be called "the Episcopal Diocese of South Carolina", vonRosenberg countersued against Bishop Lawrence and the individual parishes, claiming all of their property due to the supposedly self-effecting Dennis Canon adopted by the national Church in 1979. Finally, as a two-time delegate, George Hearn signed two oaths of conformity in which he swore allegiance to the National Church and to the remnant ECSC (pp. 74-81).

Bias Shown in Justice Hearn's Opinion

In her opinion concurring with the plurality in the present case, Justice Hearn just could not avoid letting show her overt bias against Bishop Lawrence and his diocese, by relying on her personal knowledge and opinions which were outside of the actual court record in the case. Let the motion for her recusal speak for itself (pp. 8-11):
Justice Hearn found that it was "clear from the record that doctrinal issues concerning .... the role of women were the trigger" for the disassociation. See Opinion p. 37. A complete and thorough review of not just the Record on Appeal, but the entire trial transcript uncovers no mention of the role of women. George Hearn stated that the role of women in the church was an issue to him in leaving St. Paul's Conway, but this deposition testimony was not introduced at trial. See Ex. 2, Depo. of G. Hearn pp. 27-28.  
In another section of her opinion, Justice Hearn strongly criticizes Bishop Lawrence by arguing that Lawrence joined an effort to lead his prior diocese, San Joaquin, out of TEC. See fn. 23. The record on appeal and trial transcript are devoid of such information. The published opinions on the San Joaquin case never mention Lawrence at all. In his deposition, which was not part of the record, Lawrence testified that he left San Joaquin before taking any position on their disassociation. See Ex. 26, Depo. of Mark Lawrence pp. 177-79, 183-84. 
The myth that Bishop Lawrence assisted or agreed with the withdrawal of the Diocese of San Joaquin  from ECUSA in 2006-07 was widely circulated by members of the Episcopal Forum as one of the reasons for his colleagues to exercise extreme caution in voting to confirm his election (see, e.g., pp. 105-07). As noted, there was no proof of his support, either in or out of the record. It is all too telling that Justice Hearn saw fit anyway, because of her unmitigated bias, to regurgitate the myth in her published opinion. And yet that is not all -- the motion continues (p. 10, with my emphases added):
Further, Justice Hearn states in fn. 14 "although there can be no question that the individual parishes have been affiliated with the National Church for decades, the trial court found in its order that '[n]one of the Plaintiff parish churches have ever been members of [the National Church]."' The record is clear that the trial court was right. The clerk of the Supreme Court specifically asked for Requests to Admit to be supplemented in the record. On October 8, 2013, TEC admitted "[p]arish churches are not members of The Episcopal Church." See Ex. 27, Requests for Admission dated October 8, 2013. This same admission appeared in the Record on Appeal already at R. pp. 81 and 630. This finding in Justice Hearn's opinion exists despite the clear admission from the party itself
In perhaps her most egregious attempt to manufacture false facts, Justice Hearn managed to show not only her overwhelming bias in favor of the national Church, but also her complete ignorance of its polity and structure (id. at 10-11; emphasis again added):
Justice Hearn states that the Diocese did not disassociate because its amendment of its corporate documents was trumped because "the National Church has promulgated its own set of rules concerning corporate governance, including changes to the bylaws." Op. at 14. However, TEC has no governance provisions in its constitution (R.1532) and canons (R.1703) which speak at all to the ability of a Diocese to amend its governance documents or that require the Diocese to secure approval for such amendments from anybody. There is no reference at all to a Diocese's Constitution and Canons or to its articles of incorporation or bylaws. In fact, it. was undisputed that interference ("regulation or control") with a Diocese's internal policy or affairs was forbidden to TEC's provincial synods. R.783-84. There was no provision here like that in Serbian E. Orthodox Diocese for U S. of A. and Canada v. Milivojevich, 426 U.S. 696 (1976), where a Diocese submitted its governance documents, either originally or when amended, to any other body for approval. 426 U.S. at 715, n. 9.
Long-time readers of this blog may remember my post about when canons were proposed for the national Church which included a "supremacy clause" that would have given such priority to its Constitution and Canons. That proposal, however, was resoundingly defeated in General Convention after the individual dioceses had an opportunity to consider the nature of the changes in the triennium 1895-98. That solid historical fact has never prevented liberal Episcopalians like Justice Hearn from reading nonetheless an imaginary supremacy clause into the national Constitution, despite its express rejection in 1898, and complete absence ever since.

The Clincher: Justice Hearn, a Member of ECUSA and ECSC, Is Herself a Party to the Case!

In a demonstration that tops all that came before, the motion makes its most convincing argument for Justice Hearn's disqualification at pp. 11-12. ECUSA itself has for a long time declared in its national canons that as an unincorporated association of dioceses, its members are individuals who have been baptized in the Church (Canon I.17.1 [a], cited in n. 1 on p. 11). Justice Hearn fits that description, so ECUSA itself regards her as one of its own members.

Likewise, ECSC stated in discovery that "its members are persons" (ibid.), and so Justice Hearn, who belongs to a parish that recognizes the authority of ECSC and its Provisional Bishop, is a member of that body as well.

But the kicker is that under South Carolina law, all members of unincorporated associations are deemed to be parties to an action in the name of the association -- and both ECUSA and ECSC are unincorporated associations. Ergo, Justice Hearn is a party defendant, and could be found personally liable if ECSC ends up with a money judgment against it and no means to pay it. As a party defendant, she has no right to sit in judgment of her own case (just as she has no inherent right to rule on her own disqualification by participating in deciding the motion). See the motion at pp. 11-12, and 24.)

Two Experts in Legal Ethics State that Justice Hearn Should Have Recused Herself

It is no answer to all of the foregoing to say that it was the responsibility of Bishop Lawrence's attorneys to have requested Justice Hearn to withdraw from participation in the case. The South Carolina Judicial Canons required her to make a full disclosure on the record of all of the relevant facts before proceeding at all. Not only that, once she made such a disclosure, the Canons forbid parties from waiving disqualification on grounds of personal involvement, so that she would have had to step down once she revealed the extent of her and her husband's personal involvement (see motion, pp. 13-19).

In further support of their motion, Bishop Lawrence's attorneys submitted the affidavits of two recognized experts in the field of legal ethics. (One has taught the subject at the University of South Carolina Law School for forty years.) Both are unanimous in their view that Justice Hearn was disqualified from participating in the case; that her participation violated the Due Process clause of the United States Constitution; and that under the Judicial Canons and state and federal law, it is still timely for the plaintiffs and respondents to raise the issue due to Justice Hearn's failure to follow those canons. (Motion, pp. 321-41.)

The Only Remedy: Remove the Justice from Further Participation and Erase Her Decision

It cannot be stressed enough just how serious a violation of due process this is -- for a judge so biased not to have recused herself, and to have presumed she was legally able to participate and decide a case in such a way as to benefit her own denomination, her husband and herself. This is not a matter of "abuse of a judge's discretion" -- given the facts rehearsed above and discussed at length in the motion, there was no discretion to be exercised at all. Moreover, because she deliberately chose to participate despite her many disqualifications, the full court should order her opinion on appeal vacated (see pp. 18-19).

Were the Justice now voluntarily to recuse herself, the full Court without her must still decide the motion to vacate her decision, because recusal alone will not remedy the violation. The 3-2 decision would stand until the regular Court (of only four justices) could act on the petition for rehearing (to be discussed in my next post). If it were to divide 2-2, the result would be an automatic denial of rehearing, and the egregious result would stand, leaving only a long shot at the United States Supreme Court's willingness to correct it.

The same stalemate, and same bad result, could occur in deciding the motion to vacate. That is why the motion requests the Chief Justice to appoint a a fifth qualified judge to resolve any possible division in ruling on the motion and the petition.

If the Court as so constituted agrees with the motion to vacate, it should not stop at vacating Justice Hearn's decision only, because then ECUSA and ECSC would cry foul: the result would affirm Judge Goldstein's decision, due to an equally divided court. And by vacating all the opinions, the Court would in effect be granting a new hearing of the case before a full panel (again with a fifth appointed judge to prevent any ties).

Could the Court deny this motion? Of course, it can do anything -- but to deny the motion would be for all the justices to sanction a half-a-billion dollar travesty achieved only through a gross violation of due process. That in and of itself would cast a pall over the entire Court.

ECUSA and its attorneys, of course, are not bothered by palls. Predictably, they will file obfuscatory oppositions to the motion that will play down Justice Hearn's prejudices while glorifying her legal acumen and fully appropriate decision in this case. But they have no sense of shame; they get paid to litigate to the hilt.

I cannot close without remarking how blind to due process have been all the usual bloggers who unstintingly support ECSC and ECUSA. In their comments and posts leading up to the decision (see the motion, pp. 198-256), they saw absolutely nothing wrong in Justice Hearn's participation, or her blatant bias. One of them even went so far as to write: "Justice Hearn was completely committed to the TEC/ECSC side. She was their intrepid advocate, doing, in my opinion, a better job of it [than their] lawyer" (motion, p. 248). And since the decision came out, I have read nothing but triumphalism on their websites -- there is no sense whatsoever of any impropriety, or of any unfair advantage gained by foul means. I call upon their consciences to come clean about the facts laid out in this post and in the full motion, and shall report here on their responses in due course.

Maybe I'm in the minority here, and maybe ethics is not as respected any more as it was when I started practicing law. I would like to think not, but then, I'm just a cranky old curmudgeon.









Turnings (II): the Light of Christ Shines in our Newest Christian

8/31/2017 11:37:00 AM
Sunday, August 27, 2017, marked a series of milestones for this Curmudgeon, his wife, his family, and the Christian community of which we are all a part.

First of all, it started the countdown to next Sunday, September 3, which will mark the 45th anniversary of our marriage, conducted in 1972 by the 29th rector of my home parish of Holy Trinity, the Rev. Donald Royer (of blessed memory).

In 1972, we were both living in Hawaii, but that State mandated by law (according to a statute passed at the instance of missionaries in the 19th century) that a wife must take her husband's name upon marriage. My beloved partner-to-be wanted to keep her own family name after marriage, and I had no  legal ground upon which to justify Hawaii's law. (Hawaii had been the first State in the Union to adopt an Equal Rights Amendment to its Constitution. In 1974, two years after we had married, my firm was successful in a lawsuit to have the 19th-century statute declared unconstitutional.)

Without waiting for the law to take its time in Hawaii, I was able to advise my bride that she could legally keep her own name if we held the wedding in my home town, in California. And that was how the Rev. Donald Royer came to marry us in Nevada City in 1972.

(Many years later, after he had retired to Arizona, we encountered Fr. Royer while he was on a return visit to our area. To our wonder and surprise, he blessed us again, and told us that he had kept us in his daily prayers ever since joining us in matrimony. We were overwhelmed by the grace that he witnessed to us by his steadfast confidence in the union he had asked God to bless so long ago, and his faith in our marriage gave us a new determination to live up to his [and God's] expectations.)

This next Sunday, then, we will offer our prayers and thanksgiving for the soul of that blessed man of God, who had the discernment to set us upon our path, and then to encourage us anew as we approached midstream in our partnership -- now a full family, with four very remarkable children who deserved no less than our utmost. Our earthly blessing (but not reward) is to have watched over them and their spouses as they in turn generated six adorable and marvelous grandchildren, with the prospect of more to come.

Second of all, it marked the last Sunday on which the 32nd rector of Holy Trinity, the Rev. Canon Christopher Seal, conducted services there, after serving the longest term (23 years) of any of his predecessors. (The first service at Trinity was held by Bishop William Kip, the first Bishop of California, in April 1853.)

Although the course the national Episcopal Church (USA) has taken since my baptism has left me with no alternative but to withdraw from its ranks, I cannot so abruptly bid good-bye to the parish in which I grew up and was married. My ties there today are still linked by my relationships with both Fr. Seal and the priest-in-charge who replaces him. I appreciate their own affirmations of the traditions in which I firmly believe, even if they are not as free as I am to criticize where the leadership of ECUSA is taking that body in recent years.

Given my slog through the long and desultory church wars whose details I have chronicled on this blog, and given the sorry state of California's judicial system, I am the first to recognize that my local parish would gain little, and would lose much, were it to attempt to buck ECUSA at the national or  diocesan level. At the same time, I am not convinced that I have done all that I could to bring the crucial issues to my parish's attention. And now that I have withdrawn from its membership, I have even less of a voice than beforehand in suggesting how it might still prove to be Christ's witness in this most secular world.

I was struck, however, during his last services by the fact that Trinity's rector of 23 years would no longer, from this week forward, have any voice or vote in the affairs of the parish that he has served so well and so faithfully. Canon law prohibits his participation in its affairs, or even so much as his attending a service, for a period of time after his resignation.

I cannot speak for Fr. Seal, but I imagine he must be feeling at this point a little bit of the same sort of canonical exile (albeit one required by diocesan, and not national, canons) into which the national Church's apostasy from faith and doctrine has forced me. The feeling is not so much one of regret, as it is of powerlessness to be able to affect the future course of our long-standing parish. It is as though we both, from different perspectives, have faithfully constructed and contributed over the years to a (hopefully) seaworthy vessel that now must make its own way across troubled waters, without our being able to say anything to advise (or correct) its course.

And that reflection brings me to my third and main point of this post. For facts on the ground have a way of overwhelming hopes and intentions in the abstract.

Thirty-one years ago, when my wife gave birth to our daughter Myfanwy, we had little intimation of how beautifully she and her life would evolve before our eyes. Still less did we have any clue that her future husband would come from a local family that was intimately connected with ours, leading to the G. K. Chesterton-inspired wedding that was chronicled in this post.

Well, last Sunday in Trinity Church, that marriage resulted in the baptism and christening of their first child, Indiana Douglas (or "Indy", for short), as one of Father Seal's last liturgical acts in that parish to which we all are so bound by history and tradition. It was a magical moment, as I hope these photographs of the event will convey in some small part to you.

First, here we all are -- priest, infant, parents, grandparents and godparents -- gathered around Trinity's historical baptismal font, which dates almost back to the days of Bishop Kip:




And here is Fr. Seal, Indy and his mother, with the adults well launched on their baptismal purpose, but with Indiana perhaps not quite certain yet what to make of the ceremonial apparatus in front of him:



Next comes actual baptism with water, which (of course) catches Indy by surprise: