The Anglican Curmudgeon

+Love's Last Stand

11/11/2018 3:43:00 PM
As readers may have noted, I have stopped posting regularly about the Episcopal "Church" in the USA ("ECUSA", for short) -- mainly for the reasons (as explained in so many prior posts on this site) that it is losing its identity as a Christian church, and that I am no longer a member. Now and then, however, there arises from ECUSA's decay an item which is of broader interest to Christians at large, as it points up what happens when a religious denomination  surrenders itself to the zeitgeist (and no longer follows the Heiligen Geist).

The current situation in the Episcopal Diocese of Albany, led by the Rt. Rev. William H. Love, is just such an item. On the surface, it presents a diocesan bishop who is doing his utmost to carry out his ordination vows to "guard the faith, unity and discipline of the Church" (BCP 517), and to "[f]eed the flock of Christ committed to your charge, guard and defend them in His truth, and be a faithful steward of his holy Word and Sacraments."

His vows are being put to the test because of the passage, by the ECUSA General Convention last summer, of Resolution B012. That legislation purports to make available, in each and every diocese in the USA, "trial" rites of same-sex marriage and blessings to those couples desiring them. As Bishop Love explains, in a pastoral letter addressed "To the People of God in the Diocese of Albany and throughout the World":
With the passage of B012, the 79th General Convention of The Episcopal Church in effect is attempting to order me as a Bishop in God’s holy Church, to compromise “the faith that was once for all delivered to the saints” (Jude 3 ESV), and to turn my back on the vows I have made to God and His People, in order to accommodate The Episcopal Church’s “new” understanding of Christian marriage as no longer being “a solemn and public covenant between a man and a woman in the presence of God” as proclaimed in the rubrics of the Book of Common Prayer (BCP 422), but now allowing for the marriage of same-sex couples.
The 8th Resolve of B012 states: “Resolved, That in dioceses where the bishop exercising ecclesiastical authority (or, where applicable, ecclesiastical supervision) holds a theological position that does not embrace marriage for same-sex couples, and there is a desire to use such rites by same-sex couples in a congregation or worshipping community, the bishop exercising ecclesiastical authority (or ecclesiastical supervision) SHALL invite, as necessary, another bishop of this Church to provide pastoral support to the couples, the Member of the Clergy involved and the congregation or worshipping community in order to fulfill the intention of this resolution that all couples have convenient and reasonable local congregational access to these rites."
In his letter, Bishop Love details seven grounds for his opposition to the directive in that 8th Resolve. For purposes of this post, I summarize them in point-form here, but be sure to read the whole thing:
  • First: B012 contradicts God’s intent for the sacrament of marriage as revealed through Holy Scripture;
  • Second: B012 is contrary to the 2000-year-old understanding of Christian marriage as still reflected in the rubrics of the BCP, and in the Canons of the Diocese of Albany;
  • Third: B012 "is doing a great disservice and injustice to our gay and lesbian Brothers and Sisters in Christ, by leading them to believe that God gives his blessing to the sharing of sexual intimacy within a same-sex relationship, when in fact He has reserved the gift of sexual intimacy for men and women within the confines of marriage between a man and woman";
  • Fourth: B012 encourages Episcopalians to engage in sexual behavior which is expressly forbidden in both the Old and New Testaments;
  • Fifth: By its false teaching and encouragement to sinful behavior, B012 is leading same-sex couples, as well as ECUSA itself, to come under God's judgment (resulting in the precipitous decline in membership throughout the Church);
  • Sixth: B012 attempts to force Bishop Love to violate his ordination vows, as stated above, and would lead to schism and departures in his Diocese; and
  • Seventh: Succumbing to B012's directive would render it impossible for Bishop Love to represent his diocese before the wider Anglican Communion and the whole world.
There is much more in the letter, including assurances to same-sex couples that scripture does not forbid close friendships or living together, only sexual intimacy (citing this article; see also the other resources linked on this page). As a consequence of the seven factors he identifies, Bishop Love closes his letter with this Pastoral Directive:
Until further notice, the trial rites authorized by Resolution B012 of the 79th General Convention of the Episcopal Church shall not be used anywhere in the Diocese of Albany by diocesan clergy (canonically resident or licensed), and Diocesan Canon 16 shall be fully complied with by all diocesan clergy and parishes.
Thus the lines are drawn, and the conflict caused by the actions of General Convention now invades the hitherto peaceful diocese of Albany. For instance, could Presiding Bishop Michael Curry now try to exercise his supposed authority to issue a "Pastoral Directive" to Bishop Love, requiring that he make the trial rites available to any in his diocese that request them? (Note that Resolution B012's mandate does not take effect Churchwide until December 1.) 

As I pointed out in this earlier post, it is extremely doubtful that the enactment of the provision in Title IV that purports to confer upon the Presiding Bishop metropolitan authority over his episcopal colleagues can be squared with the grant of all ecclesiastical authority, by Article II.3 of ECUSA's Constitution, to a bishop within his own diocese. In other words, individual diocesan bishops are, by Section 3 of Article II of the Church's Constitution, limited to exercising jurisdiction within their own dioceses -- they may not exercise any authority within another diocese unless invited to do so by the ecclesiastical authority of that other diocese.  

The Presiding Bishop is not even a diocesan bishop, and has no diocese of the United States within which he or she can act as the ecclesiastical authority. Nor does the Constitution vest the Presiding Bishop with authority over other bishops. Consequently no canon (bylaw) of the Church can confer any greater authority on the Presiding Bishop than he or she has under the Constitution.

Without Bishop Love's consent, therefore, how could the Presiding Bishop issue him a "Pastoral Directive", let alone one that requires him to violate his ordination vows and the rubrics of the BCP, as well as his own diocese's canons? (Even Canon IV.7.2, authorizing the issuance of Pastoral Directives, specifies that a Directive must "be neither capricious nor arbitrary in nature nor in any way contrary to the Constitution and Canons of the General Convention or the Diocese" [emphasis added].)

If Bishop Love cannot be directed by any other bishop to violate his vows or his diocese's canons, then neither may General Convention do so. The problem is with that capitalized word "SHALL" in the 8th Directive of Resolution B012, quoted above. The mandatory language of the Resolution is directed improperly at diocesan bishops, and so violates their constitutional authority within their own diocese as specified in Article II.

A qualification: at the session of the House of Bishops which adopted B012 last summer, there was this exchange between Bishop Dabney Smith, of SW Florida, and the chair of the committee that reported the Resolution for passage:
Bishop Smith: . . . a question: . . . I'm wondering about the definition of the word "shall" in a resolution compared with the use of "shall" in a canon.   
Committee chair: I would just say: there is a difference, number one. And also, this word "shall" is modified by the next phrase, "as necessary". . . . The committee . . . I believe I can say . . . we intended that it was a matter of pastoral discretion for the bishop.
(You can see this exchange beginning at 45:28 of the video of the session, at this link. Also on the video, beginning at the 28:00 mark, are Bishop Love's observations in opposition to B012.)

Will ECUSA, therefore, in light of the committee's insertion of the qualifier "as necessary", grant to Bishop Love the full extent of his pastoral discretion in refusing to implement B012 in his diocese?  It remains to be seen -- especially in view of ECUSA's previous shameful treatment of Bishop Mark Lawrence of South Carolina. If the House of Bishops begins disciplinary proceedings against Bishop Love, then history will repeat itself in Albany.

It should go without saying that no Canon or Resolution of General Convention may by its terms be contrary to the provisions of ECUSA's Constitution. But the LGBT movement within ECUSA, by pushing and pushing to force same-sex rites on all dioceses in the Church, has now brought matters to such a pass. If ECUSA attempts to rein in or discipline Bishop Love for refusing to violate his own vows or canons, then it will demonstrate once again its contempt for church order as established by its Constitution, and the surrender of its integrity to the spirit of the times. And that is why this Curmudgeon has such difficulty in perceiving ECUSA any longer as a church which recognizes Christ as its head.

On this Armistice Day, on which we honor all those who gave their lives to keep our country free, it might be well to consider the connection to its equivalent in the church calendar, All Saints Day. On that festival day, Christians honor all the saints whose sacrifices have ensured to us the transmission of the "faith once delivered" to the very first of them. Both saints and brave warriors are necessary to preserve our freedoms and our faith. By rejecting (or abandoning) what they have kept secure for us, we place ourselves and our country at risk of God's judgment.

May God preserve Bishop Love strong in his faith, and may He so preserve us all. 



    Why I Am Fed Up With the Media

    11/1/2018 12:52:00 AM
    I have not been blogging, because I have no wish to add to the cacophony that assaults us every day, without letup. That said, the video below explains why in pictures that are far better than any words could express:

    A Modest Proposal to Deal with Politics at Sports Events

    9/16/2018 5:54:00 PM
    Despite the obvious effect of their injecting unwanted politics into their football games, most NFL players and their team owners are ignoring their declining audiences and insisting on their "right" to show in public their collective disrespect for the country that has made them wealthy beyond childhood dreams.

    I have no problem with their saying or doing anything they wish in private. But when they force a (temporarily) captive audience, who just came to see a game, to witness how dissatisfied these football elite are with some unarticulated aspect of America while everyone else stands for the national anthem, then enough. If they don't respect the anthem, they don't respect the flag, or the country for which both stand. So why subject them to an unwanted performance at the start of each of their games?

    Let's see how they would like some politics injected into their livelihood.

    The national anthem, whose words by Francis Scott Key were set so long ago to a tune most people cannot sing well (or sing at all), but which is glorious when properly performed, is by now the property of the people of the United States. Congress, acting on their behalf, ought to license its performance at sporting events. The license would be automatic and free of charge to any event put on by teams and players who have no trouble standing during its performance.

    But the license should be denied to those who cannot show the minimal respect which every average citizen has no trouble giving: standing silently while it is performed, and then cheering afterward. Each NFL team should be informed that it no longer has the right to perform the anthem at any of its games until its members are ready to grant it the minimum degree of respect which Americans accord to it.

    Should any such team go ahead with the anthem's performance, just so they can continue to display their disrespect, then an automatic licensing fee should be imposed without further ado, equal (for the first offense) to $10 per person attending, and accelerating for each subsequent license violation to $100 per person. Indeed -- let the fee keep going up until the price for showing disrespect becomes too high for the team and its owners to pay.

    Further, any team that does not have a license to have the anthem performed at its events, but aspires to qualify for such a license eventually, will have to show that it gave a public announcement before the start of each of its unlicensed events to this effect: "The [name of team having the home stadium] announce that they do not yet care to show respect for the national anthem, and so by law are not licensed to perform the anthem at any of their games. Accordingly, there will be no performance of the anthem at this event. Anyone who wishes a refund of the price for their ticket should leave now and collect their money at the box office."

    The team should also be prepared to show that it gave a similar notice to every person purchasing a ticket for the event, and promptly refunded the ticket price to any holder who asked for it before the game started.

    Finally, Congress should pass a law making the price of any ticket to a licensed sporting event (up to a maximum of 24 such events per year) tax-deductible, but denying any such deduction for tickets to unlicensed events. Later on, if more pressure is needed, Congress could impose a tax, say, of 20% on the price of a ticket to an unlicensed event.

    And that is how you play politics with sports events.


    Finally! a Politician Speaks the Unvarnished Truth

    9/8/2018 12:03:00 AM
    I have deliberately stayed away from blogging recently -- partly because the news is moving so fast that I have no ability in these days to get above the fray and take a longer view of things, and partly because the Internet is already swamped with too much instant commentary and reaction. Indeed, I dare say that trying to stay on top of today's news as it develops from minute to minute could become hazardous to one's sanity.

    The recent Senate hearings on nominee Brett Kavanaugh are a perfect case in point. Was it ever the case that the national networks wasted so much time on such political grandstanding, demagoguery, and posturing -- which had no relevance to the candidate's fitness to occupy a seat on the nation's highest court?  Such politicization of the "advise and consent" role the Senate plays in judicial nominations distorts the real role that Congress ought to play in our government.

    I could go on, but there is thankfully a much more direct and forceful way to make my point. Just watch this amazingly candid and absorbing opening statement by Senator Ben Sasse of Nebraska, delivered mostly ex tempore on September 4.  You will never spend a better eleven minutes listening to such a brilliant dissection of what so ails our current, broken system, and this blog can serve no better current purpose in these hysterical times than to bring it to your sober attention:




    "O, What a Tangled Web We Weave . . ."

    6/13/2018 12:24:00 PM
    " . . . when first we practice to deceive." That's a famous quote, frequently misattributed to Shakespeare, that comes from the epic poem Marmion, by Sir Walter Scott. And it perfectly describes the current situation with the Episcopal Church case in South Carolina.

    For you see, the Episcopalians conspired with Associate Justice Kaye Hearn of the South Carolina Supreme Court to hide her bias and prejudging of the issues until she was allowed to hear and contribute her opinion to the case without objection from the attorneys for Bishop Mark Lawrence and the parishes in his Diocese of South Carolina. She was too biased to conceal her partisanship in the oral argument of the case, and then she displayed it overtly when she ruled against Bishop Lawrence and his parishes -- even going so far as to single him out for "betraying his vows of ordination" and for "breaches of fiduciary duty."

    (Note to Justice Hearn: the secular courts cannot, consistently with the First Amendment, entertain questions as to whether a cleric in a religious denomination has broken faith with it, or acted in breach of the unique duties owed by a bishop to the church in which he sits. So your opinion that expresses your views on those issues was ultra vires -- beyond your powers to decide.)

    And then, having delivered her coup de grace to Bishop Lawrence, Justice Hearn finally saw fit to recuse herself from the case -- after she had signed her opinion!

    That opinion was one of five in the case, no two of which followed the same reasoning.  (To be sure, Justices Pleicones and Hearn "concurred" in each other's opinion, but Justice Hearn based her result on grounds other than those of Justice Pleicones, such as the law of constructive trusts.) Given such a splintered result, what is the trial court judge to do on remand?

    Here are the conclusions to each of the three opinions agreeing that Judge Goodstein's judgment below should be reversed:

    Pleicones, J.: "Further, the civil courts in South Carolina cannot decide disputes which are governed by church polity and governance concerning property ownership.  For the reasons given above, I have determined that the real and personal property disputes sought to be adjudicated in this civil lawsuit are 'question[s] of religious law or doctrine masquerading as a dispute over church property [and] corporate control . . . .' See All Saints at 445, 685 S.E.2d at 172. I find, therefore, the Court 'must defer to the decision of the proper church judicatories . . . .'  Id.
    . . . For the reasons given above, I would reverse the circuit court's order and also join Justice Hearn's opinion."

    Hearn, J.: "Based on our doctrine of deference to ecclesiastical authority, the Appellants represent the true Lower Diocese of the Protestant Episcopal Church in South Carolina and are therefore entitled to all property, including Camp Saint Christopher and the emblems, seals, and trademarks associated with the National Church. This holding is based on the National Church's recognition of Charles vonRosenberg as its Bishop and the express trust imposed on Respondents' property by the Dennis Canon, as well as on state corporate law principles." [Footnote omitted.]

    Beatty, C.J.: "Thus, in contrast to the majority, I would find the parishes that did not expressly accede to the Dennis Canon cannot be divested of their property. Because there was no writing purporting to create a trust and they took no other legal action to transfer ownership of their property, I believe these parishes merely promised allegiance to the hierarchical national church. Without more, this promise cannot deprive them of their ownership rights in their property. However, I agree with the majority as to the disposition of the remaining parishes because their express accession to the Dennis Canon was sufficient to create an irrevocable trust. [Footnote omitted.] In conclusion, I readily acknowledge the controversy surrounding this case and the ramifications of the Court's decision. Even so, my decision cannot be driven by personal beliefs or a desired result. Strictly applying neutral principles of law, which I believe this property dispute mandates, I would affirm in part and reverse in part the order of the circuit court."

    Thus two of the Justices viewed this case as one in which the civil courts should "defer" to the "ecclesiastical authorities" -- even though South Carolina is a "neutral principles" State, in which "deference" has no role! -- while the third reaches his result based "strictly applying neutral principles of law." Two of them simply "reverse" the decision below (and one only in part), while only Justice Hearn declares the whole kit and caboodle to belong to her own denomination.

    The first two Justices would thus have overruled the leading South Carolina neutral principles case, All Saints Parish Waccamaw v. Protestant Episcopal Church in the Diocese of South Carolina, but two votes do not suffice for that. They would have required a third vote to overrule that decision, and they never obtained that third vote. So the neutral principles doctrine of All Saints Waccamaw stands unchanged.

    Nor did Justice Hearn get any other Justice to buy into her "constructive trust" rationale (unless Justice Pleicones may be said to have done so by "joining" in her opinion). But that was not a ground urged on appeal by ECUSA or its rump diocese -- so Justice Hearn gratuitously inserted her views on an issue that was not properly before the Court.

    Finally, only two of the Justices (Hearn and Beatty) mentioned Camp Christopher -- the retreat property that belongs not to any one parish, but to the Diocese itself. The Dennis Canon does not apply to the property of a diocese, and so it cannot be used to transfer ownership. For Justice Hearn, "deference" requires that result, while for Chief Justice Beatty, the result follows from the fact that he cannot see how Bishop Lawrence's Diocese is the "successor" to the diocese that owned the property before the lawsuit began. (But the Diocese did not go anywhere -- it is still the same South Carolina religious corporation it always was. So how can there be any question of whether a Diocese can "succeed" itself? The Chief Justice went out on a limb, and no one joined him.)

    An even bigger problem for Judge Goodstein on remand, however, is how she should regard the opinion of Justice Hearn, who belatedly recused herself due to a (presumed) perception of a conflict of interest. (You think?) Which is to say, she never should have participated in the case to begin with. In light of that fact, why should attention be paid any longer to her views of the case? To give effect to them would be to allow a conflict of interest to decide the case's outcome, when courts are required to avoid all conflicts in order to ensure their impartiality.

    If Justice Hearn's opinion and vote are disregarded, we then have a situation in which the vote of the South Carolina Supreme Court was only 2-2 for reversal, which means that Judge Goodstein's previous order would not be reversed, but would stand as the final decision in the case. In other words, Justice Hearn's deceptive tactic of waiting for the petition for rehearing to recuse herself (thereby ensuring a 2-2 vote against granting the rehearing) would be turned against her, and used instead to affirm the judgment below.

    Can you imagine how the ECUSA attorneys will jump and yell and stamp their feet if Judge Goodstein takes that position on remand? But what can they do otherwise, if she does? The most they could do is take another appeal up to the South Carolina Court of Appeals, and then ask the Supreme Court to take the case. But if the case gets that far, Justice Hearn will no longer be able to participate in it. The outcome would thus not be assured at all.

    This mess is to be laid entirely at the feet of Justice Hearn and the denomination of which she is a devout and practicing member, namely, the Episcopal Church. They conspired together, as I charge, to obtain the result they wanted by concealing the open bias that Justice Hearn later felt bold enough to display. And then, by recusing herself only at the last minute, Justice Hearn has managed to enshroud all her previous actions in the case with doubt and uncertainty as to their validity.

    Only another (and very different) South Carolina Supreme Court can sort out this mess. In this Curmudgeon's view, Bishop Lawrence and his attorneys should take the firm position that with Justice Hearn's recognition that she never should have participated in the case, her opinion must be disregarded just as if she had openly withdrawn it. To give it any shrift at all would be to sanction open bias and partiality in our court system, and thereby undermine the rule of law.

     [UPDATE 06/14/18: I am informed that the "Supreme Court" (which three Justices, after Justice Hearn's recusal, I don't yet know) "remitted" (not "remanded") the case to a different circuit court and judge -- to Judge Edgar Dickson of Orangeburg County. That means that Judge Goodstein will also play no further role in these proceedings, while Judge Dickson is a blank slate.

    Nothing in that news changes the logic of my argument, however. The point is that Justice Hearn's participation in the case was invalid, and that she herself has acknowledged it was invalid. An invalid vote is a nullity, and cannot be counted.]

    Justice Denied: SCOTUS Refuses South Carolina Petition

    6/11/2018 9:29:00 AM
    Today's order list from the United States Supreme Court brings the sad news that the Court voted to deny certiorari (review) in the case of Bishop Mark Lawrence and the parishes of the Diocese of South Carolina.  This means that no four justices considered the case important enough to have the Court's full attention, and says volumes about the secular makeup of our current Court.  (Or it could be telling us that the justices of the Supreme Court are better followers of St. Paul's advice on litigation than are most Episcopalians, Methodists and Presbyterians! Six of them are Roman Catholic, after all.)

    It also means that the impossibly fractured, highly partisan and irresponsible decision of the court below will stand in infamy as possibly the worst application of so-called "neutral principles" on record. But that the Supreme Court chose to do nothing about the legacy that Harry Blackmun gave us says that it has disowned its responsibility for that doctrine, and in the future will mean that churches can expect no fair treatment of their property issues in the secular courts.

    As, always, therefore, St Paul is vindicated yet again. And ECUSA gets just what it always wanted: a servient South Carolina of its own, with no regard whatsoever for the centuries of history that built the heritage it betrays today. By watching what the Episcopal Church and its minions do with the treasure that has been handed over to them, the rest of the Christian world will learn the nature of the god which Episcopalians today truly worship.

    How Did Everybody Forget Where the Temple Was?

    5/30/2018 4:15:00 PM
    This is Part III of a series: Where Did Israel's Temples Stand? You may read Part I here, and Part II is here.

    In the previous post in this series, we looked at the fairly convincing evidence that Jerusalem's present-day "Temple Mount," or Haram-esh-Sharif as the Muslims call it, is the foundation of what was once the Roman fortress at Jerusalem, built by Herod and named "Antonia" for his patron Mark Antony. It was not the site at all for any of the earlier temples which were at the center of Jewish religious life. Rather, as eyewitness testimony will show, the site for Herod's temple (and Zerubbabel's, and Solomon's) was at the top of the mount called Ophel, about 1000 feet to the south of the Antonia fortress.

    In this post, I want to review the eyewitness testimony as to the temple's location, in contrast to that of Antonia's. We will start with the earliest testimony recorded just after Titus and his Roman soldiers had razed Herod's temple to the ground -- including all its foundations.  Our starting point is, once again, the first-century historian Josephus, who was in Jerusalem (and a member of Titus' staff) when the Romans destroyed the temple.

    Josephus quotes Eleazar, the commander of the Jewish forces at Masada until that fortress in turn was overrun by the Romans three years after Jerusalem fell.  As the Romans were about to storm the last ramparts that defended the Jews there, Eleazar gave a speech urging his men to put themselves to the sword rather than accept death or captivity at the hands of the Romans. In the course of that speech, Josephus has him say of Jerusalem (Jewish War, 7:375-76 [Hammond tr., OUP 2017; my emphasis):
    "Where now is that great city, the mother-city of the whole Jewish race, secure behind all those rings of walls, protected by all those guard-posts and massive towers, with hardly enough room for its arsenal of munitions, and with all those tens of thousands of fighting men to defend it? Where has it gone, that city of ours which was believed to have God as its founder? It has been torn up by the roots and swept away.  The only memorial of it left is the camp of those that destroyed it, still quartered in the ruins . . .".
    While Eleazar's words might be artistic license rather than recorded verbatim, the fact that their author is Josephus, who was himself personally familiar with what the Romans left standing at Jerusalem, is guaranty enough that what Eleazar states is an accurate description  -- otherwise those with equal knowledge of the facts -- including Josephus' own sponsor, Titus himself -- could easily have contradicted him.

    The next eyewitness testimony is from the time of the Emperor Hadrian, in 132 A.D., who with Roman troops put down the second Jewish rebellion which began that year, led by Simon bar-Kokhba.  That rebellion, unlike the first, was not fought in the streets of Jerusalem, because Titus and his troops had left the city uninhabitable. Citing contemporary accounts, Epiphanius of Salamis, who was the bishop of Cyprus, wrote in the fourth century:
    It was in the second year of his reign when [Hadrian] went up to Jerusalem, the famous and much-praised city which had been destroyed by Titus the son of Vespasian. He found it utterly destroyed and God's Holy Temple a ruin, there being nothing where the city stood but a few dwellings and one small church. . . .  [Then] Hadrian decided to restore the city, but not the Temple.
    Hadrian built the city he called Aelia Capitolina on the westernmost hill of the former Jerusalem, in the area of what Josephus called "the upper city." The builders used stones from the former Temple and from other ruins left by Titus. (This "recycling" of stones from the lower city has presented many puzzles for archaeologists at Jerusalem's various sites.)

    The former City of David, on the lower eastern hill (where the temple had stood), was left to go fallow, and according to the testimony of St. Jerome (in his Commentaries, with reference to Isaiah 64:11) "the Temple which earned reverence throughout the world has become the refuse dump of the new city Aelia . . .".

    The Christian historian Eusebius was the librarian at Caesarea, and frequently visited the library at Aelia in the early fourth century. On numerous occasions in his writings he laments the complete and utter destruction of the Temple, and notes that its site was now "a Roman farm like the rest of the country . . . I have seen the bulls plowing there and the sacred site sown with seed" (Ecclesiastical History VIII.3:406).

    In contrast to the site of the Temple, other fourth-century writers referred to the site of Fortress Antonia as the site of the rebuilt Praetorium, where Jesus had been tried before Pilate. The Romans ceased using it as a fort around A.D. 289, and Eusebius reported it had deteriorated from disuse by the time he came to Jerusalem (Aelia). But St. Jerome again describes it rebuilt circa 380 A.D. as an "imperial residence", in which he invited his noble-born friend Paula (who had become a nun) to stay. (She declined on the ground that it was too ornate for a nun, even one who was noble-born.)

    By the time of the "Piacenza Pilgrim", writing ca. A.D. 570, there was a Christian shrine, called the Basilica of St. Sophia or the "Church of the Holy Wisdom" built on the Praetorium platform to surround the "judgment rock" on which it was thought that Jesus had stood when Pilate sentenced him to death. From the description the Pilgrim gives of the rock, there can be no doubt that this is the same irregular stone over which the Dome of the Rock now stands, in the middle of the Haram-esh-Sharif, and the Pilgrim's narrative thus supplies the conclusive connection between the former Roman Praetorium (Antonia Fortress) and the Haram-esh-Sharif which so many now mistake as "the Temple Mount". The indentations which present-day Muslims identify as the "footprints of Mohammed" which the Prophet left as he began his final journey are the same which the "Piacenza Pilgrim" identified in 570 A.D. as the "footprints of Jesus" when he stood before Pilate.

    Making this connection enables one to understand just how the memory of the original temple site was lost over time, and became conflated with the site of the Antonia, now the Haram-esh-Sharif. The Church of the Holy Wisdom stood over its revered rock during Byzantine times until the Persians (and Jewish soldiers) destroyed it in A.D. 614. As I noted in the post before this one, Caliph Omar, after conquering Jerusalem in A.D. 638, left the (now) bare rock alone when he built the al-Aqsa Mosque at the far southern end of the fortress platform to honor the Prophet's last journey. But by the time of the Caliph Abd-al-Malik in A.D. 691, Muslims had come to identify the visible markings on the rock with the Prophet's nighttime journey, and so he had the Dome of the Rock built over it, where it stands today.

    So things went until the time of the Crusades. When the Christians conquered Jerusalem in A.D. 1099, they slaughtered most of Jerusalem's Muslim and Jewish inhabitants, and converted al-Aqsa and the Dome of the Rock into Christian places of worship. Later Crusaders mistakenly identified al-Aqsa as having been built on the site of Solomon's Temple, and called it "Templum Solomonis". King Baldwin II of Jerusalem, along with Jerusalem's then patriarch, gave approval to the formation of a military holy order to protect Christian pilgrims to the Holy City. He let them establish their headquarters in the refurbished al-Aqsa mosque, and due to its Christian name they became known as the "Knights Templar".

    And ever since, Christians, Moslems and Jews have identified the Haram-esh-Sharif as the former site of the Jewish temples, beginning with that of Solomon.

    The original connection between the Temple of Solomon and the Gihon Spring has been forgotten. (Even the Roman historian Tacitus referred to Herod's Temple as having an "inexhaustible spring" within its perimeter, while there were only cisterns -- and no spring -- to supply water for the Antonia Fortress.) To complete the circle back to the original temple site, I will review the evidence identifying Gihon's waters with the Temple in a subsequent post.

    Where Were the Soldiers Quartered in Jerusalem?

    5/23/2018 1:27:00 PM
    This is Part II of a series: Where Did Israel's Temples Stand? You may read Part I here.

    There are a good number of blog posts and articles on the Internet that deal with the relationship of Fortress Antonia to what is today called "Temple Mount" in Jerusalem. Most defend the current consensus among archaeologists that the two structures were adjacent, but that the Temple Mount area (some 35 acres) was vastly larger than the Roman fortress, which adjoined Temple Mount only at its extreme northwest corner. The scale model of first-century Jerusalem exhibited at the Israel Museum shows the consensus relationship:


    (Click the photo to enlarge it.) The Fortress Antonia model consists of the four towers at the upper right-hand corner of the temple area. Here is a close-up of the model:



    The problem is that there is precious little archaeological evidence to support this configuration of the Fortress, which renders it so small in proportion to the Temple area (about 1.5 acres compared to 35).

    Fortunately, we have a good deal more eyewitness evidence than archaeological evidence. The first-century Jewish historian Josephus wrote about a number of features of the fortress. In particular, he states that it was situated on a rocky precipice that Herod had clad in smooth, polished stone to prevent any attempt at climbing it from outside, and that at its summit the fortress stood surrounded by a defensive wall that was three cubits (four and one-half feet) tall:
    The fort of Antonia was situated at the angle formed by the western and northern colonnades of the outer temple  court, and was built upon a rock 75 feet high and precipitous on all sides. It was the work of King Herod, and a pre-eminent example of the breadth of vision which was inherent in his character. For a start, the rock was clad from the base up with polished stone slabs, both for ascetic purposes and to deny purchase to anyone attempting to climb up or down. Then in front of the fort building itself was a 4 1/2-foot wall, behind which the whole structure of Antonia rose to a height of 60 feet. . . .
    (Flavius Josephus, The Jewish War 5:238-40, tr. by Martin Hammond [Oxford: Oxford University Press, 2017].)

    One looks in vain for any such features depicted in the model at the Israel Museum. Indeed, by joining the front of the fortress directly to the northwestern corner of the temple colonnades, the Museum model makes it impossible for there to be any defensive wall 4 1/2 feet high, let alone such a wall perched on a rocky summit whose base was clad in smooth, polished stone slabs.

    Regrettably, the same omissions are true of every other depiction of the fort I have viewed on sites that support the archaeological consensus, such as this one. But we are just getting started with the discrepancies between Josephus' account of the fortress and the modern-day consensus.

    Note that Herod would have had to construct the Fortress before he began renovating the Temple, a process which both Josephus and other sources indicate started around 20 B.C. The reason is that Herod named the fort for his old patron, Mark Antony, who died in 30 B.C. after losing to the forces of Octavian at the battle of Actium. Thereupon Herod submitted to Octavian, who became the emperor Augustus Caesar in 27 B.C. It would not have been politically astute for Herod to name the fort after Augustus' former rival once Augustus became emperor -- and Herod was nothing, if he was not politically astute when it came to appeasing his Roman overlords.

    As a consequence of its construction at a different time, and as Josephus explains in another passage of his Jewish War (6:144), the fort was separated from the temple by the distance of a stade (600 feet), but connected to it by two parallel colonnades that afforded an easy access for troops passing between one and the other, and which was the scene of intense fighting back and forth as the Roman soldiers in 70 A.D. advanced from the fort to the temple. You will see nothing of such a separation, or of a double colonnade, in any discussion of the fort by current archaeologists.

    Nor will you read in consensus accounts about the huge numbers of Roman troops who were stationed in Jerusalem from time to time while Josephus was writing. That is because the recent translators of Josephus, bowing to the consensus of the archaeologists, have gone out of their way to minimize, and hence mis-translate, what Josephus actually says on the point.

    Look at the Israel Museum model of Fortress Antonia once again (above). How many Roman soldiers can you imagine squeezed into such a space? Even if one makes a generous assumption that there was a full 1.5 acres inside the model's fort, that translates into just 65,000 square feet. Allowing just 65 square feet (13' x 5') for each soldier's tent and personal space, that means a maximum of 1,000 soldiers could be squeezed into the fortress grounds, without allowing any space for avenues, markets, baths, temples, exercise grounds and other areas found in a typical Roman camp of the first century, such as this one:



    Josephus describes Fortress Antonia as capable of quartering an entire Roman legion, which typically consisted of ten "cohorts" of about 600 men each (Jewish War 5:244). To the 6,000 soldiers in any legion must also be attached those who made their livings by following and supplying army camps with everything from entertainment to food and drink -- estimated at another 4,000 or so. As Josephus states, the Antonia Fortress had enough conveniences in it to be likened to a polis, or Greek city (Jewish War, 5:241). Such a level of services would be out of all proportion for a facility designed to quarter just a few hundred men. Take a look at this illustration of the space needed for a full Roman legion:




    If the reader examines the modern translations of Josephus' Jewish War, however, he or she will undoubtedly ask: where are the references to the Fortress containing a "legion" of soldiers? Both the most recent (2017) translation I quoted earlier, and the Loeb Classical Library edition of 1928 translated by H. St. James Thackeray, take the Greek word for "legion" which Josephus uses at 5:244, τάγμα (tagma), and translate it as "cohort"! In that way, they manage to shrink the Antonia garrison down to the size that will (still barely) fit into the modern consensus model of the fort.

    Josephus, however, as an army commander himself and adviser to the Roman general Titus, knew perfectly well the difference between a legion (tagma) of 6,000 soldiers and a cohort of 600. When he wants to refer to the latter, he consistently uses the Greek word σπεῖρα (speîra -- see, e.g., Jewish War 1:301, 323-24).

    Or take another instance of willful mis-translation: the Greek word στᾰδιαῖος, or stadiaios, is an adjective meaning "one stade [~600 feet] long, deep or high", or in other words, it describes the extent of the space that an object occupies. But the similar-looking word στᾰδαῖος, or stadaios, is an adjective meaning "standing erect or upright." In his Jewish War 6:144 (a passage I referred to above), Josephus used the former word to describe the long, narrow space in which the rebel Jews fought the Romans along the tops of the double-colonnades running between the northwest corner of the temple and the gate of the fort -- i.e., that space was one stade long, or just 600 feet.

    Both modern translations, however, cannot square this description with the archaeological consensus model of a fort confined to a narrow area adjoining the temple's northwest corner. So once again, archaeology is allowed to trump eyewitness testimony: the translators make the word stadaios instead of stadiaios, and claim that the Greek manuscript itself must be in error.

    Other common-sense considerations come into play. Take a close look at the illustrations of the model fort above, and then consider the timeline. How would it make any sense for Herod to have built such a diminutive fort in about 33-35 B.C., only then to expand the temple platform northward in 20-15 B.C. so as to crowd in on the fort's main entrance, and make it thereafter accessible only through the Temple itself? (Josephus says that there was a deep ditch on the fort's northern side, making it unapproachable and hence easier to defend.)

    The main function of the fort was to house soldiers who came with the Roman prefect from Caesarea to Jerusalem to occupy it during the times of the Jewish holy festivals, when there might be over a hundred thousand pilgrims crowding into Jerusalem. Six hundred soldiers would be wholly inadequate to maintain control over such a crowd; 6,000 soldiers would be far more able to do so.

    But the fort was an alien space to Jews like Josephus. They would have kept out of it, for fear of becoming unclean. (Recently, some ritual baths (mikva'ot) were uncovered at the foot of the southern steps leading up to the al-Aqsa mosque. Archaeologists pounced on their discovery as evidence of the existence of the Temple on the platform to which the steps led, but their presence is just as consistent with there having been a Roman fort on the platform, so that Jews who had to go to the fort could cleanse themselves immediately upon exiting it.) For this reason, no doubt, Josephus keeps his descriptions of it entirely to what could be observed of its exterior.

    It is, then, only by selectively interpreting (and mistranslating) Josephus' eyewitness accounts that modern archaeology can form a consensus around the notion that Fortress Antonia was just a pimple on the northwest corner of a huge Herodian Temple Mount. When one reads the full account in his Jewish War, and the corresponding passages in his Jewish Antiquities, there is no basis whatsoever to try to confine the area of the fortress to such a ridiculously small size for its admitted purpose. (Indeed, typical Roman camps of the time were between 30-33 acres in size, so the platform which Herod constructed on the craggy summit overlooking the City of David was perfectly capable of being adapted to the needs of the Roman troops that had to come there.)

    Nor does any other comparably sized site exist in the area of greater Jerusalem at which both a full Roman legion could be quartered, and still manage to fit Josephus' description of its site, as follows:
    For if the temple lay as a fortress over the [lower] city, Antonia dominated the temple, and the occupants of that fort were the guards of all three, for the upper city had a fortress also, at Herod's palace. [Jewish War 5:245-46; my translation and emphasis.] 
    This is just a smattering of the eyewitness evidence showing that in the first century, the Roman troops were quartered from time to time in Fortress Antonia, which had to occupy most of the 35 acres of the present Haram esh-Sharif platform on which the Dome of the rock and the al-Aqsa mosque currently sit, and which modern archaeologists and today's religious Jews insist was once Temple Mount. There is much more laid out in Ernest Martin's (now out-of-print) book, The Temples That Jerusalem Forgot. Unfortunately, that book is a tedious read, because Dr. Martin repeats himself endlessly, and a good deal of patience is needed to sort out the main points of his argument.

    In the next installment in this series, I will go into the history of what became of Fortress Antonia after 70 A.D., when the Romans razed Herod's temple to the ground, and left not even one foundation stone standing -- while the same obviously is not true, as may still be seen today, of the foundation of the Roman fortress itself.








    South Carolina Case Goes to SCOTUS Conference (UPDATED)

    5/16/2018 10:47:00 AM
    The petition for review (certiorari) filed by Bishop Mark Lawrence's Diocese of South Carolina and 28 of its parishes with the Supreme Court of the United States is now ready for decision by the justices. At least four of the nine justices on that Court must vote in favor of review for the case to be argued and submitted in the next term, which begins October 1 of this year and runs through June 2019.

    The vote could (but is not likely to) come as early as tomorrow, Thursday May 17, which is the next date on which the justices will sit in conference to decide which petitions in cases that are now fully briefed should be granted review, and which denied. (Denial of review does not mean that the case lacked merit, or that the decision below was constitutionally correct. It simply means that no four justices of the Court felt that the case was important enough to be addressed by the full court.)

    In an earlier post, I linked to the Petition, which is here. The brief in opposition (which the Court requested the respondents to file, after they first tried to waive their right to respond) is here.  The Diocese's reply to that opposition (filed just yesterday) is here.  The U.S. Supreme Court's docket page will also let you download the two amicus ("friend of the court") briefs in support of the Diocese's petition, one filed by a group of 18 professors who teach First Amendment law in various schools across the country, and the other filed by the American Anglican Council.

    All the briefs are worth reading -- they are very well written, and concisely present the reasons why SCOTUS should grant review.

    In their respondents' brief, ECSC and ECUSA took a gamble by resting their main opposition upon just a single ground: that the Court lacked jurisdiction to review the case because the five divided justices of the South Carolina Supreme Court had decided the case below on independent state-law grounds, and did not rest their decision on any interpretation of federal law. (SCOTUS reviews only issues of federal law that are decided by either the state or federal courts.)

    As the Diocese's reply brief points out, this claim is far from accurate. Two of the justices below (Pleicones and Hearn) were clear that they viewed the 1979 decision of the U.S. Supreme Court in Jones v. Wolf as requiring them to give effect to the trust on church property imposed by the Dennis Canon, even if the documentation of that trust failed to pass muster under South Carolina law. In other words, Justices Pleicones and Hearn held that the First Amendment trumped state trust law -- and that was obviously a federal ground of decision.

    Even Chief Justice Beatty, who declined to articulate his reasoning, held that the Dennis Canon was sufficient to create a trust under South Carolina law so long as the individual parishes "acceded" in some way to that Canon. Since, as Justice Kittredge pointed out in dissent, any argument that a trust under South Carolina law could rest upon such a dim showing of assent was "laughable", it is only fair to conclude that Chief Justice Beatty reached his result by relying upon the same (federal-law) reading of Jones v. Wolf that drove Justices Hearn and Pleicones.

    In sum, the South Carolina case presents as good a reason as ever will arise for SCOTUS to grant review, in order to end the confusion over the meaning of Jones that divides some nineteen different state and federal courts below. (Those decisions are reviewed and discussed at pp. 21-29 of the Diocese's petition.)

    So stay tuned -- although the Court will probably not consider the petition that soon, we could have a decision announced in the orders to be released next Monday morning. And if not then, there is Tuesday, May 29; after that, there are four more days in June (June 4, 11, 18 and 25) for orders to be issued. If the Court follows its normal practice, the petition would be considered earliest at its June 7 conference, but it could also be "carried over" to the one on June 14 or on June 21.  

    [UPDATE 05/22/2018: The docket page for the South Carolina case on the SCOTUS Website is now showing the entry: "DISTRIBUTED for Conference of 6/7/2018." So now we are advised -- look out for a decision on the petition in the orders issued beginning at 10:00 am on June 11. As is all too typical of such momentous events, your Curmudgeon is scheduled to be on vacation in Ashland on that date. But I will make an exception that morning, and will put up a blog post no matter what the Court decides. It is also possible, as I mentioned above, that the Court could "relist" the petition for consideration at its conference on June 14, or June 21 -- which would be the last conference in the current term. Such a resisting, if it occurs, means that there are some justices interested in granting the petition, and some who are still undecided, or on the fence. Both groups want more time to discuss the case and see if they can reach a consensus.]



    Where Did Israel's Temples Stand?

    5/14/2018 1:27:00 PM
    (Part One of a Series)

    With the recent news of renewed clashes between Jews and Muslims over the right to occupy Jerusalem's so-called "Temple Mount", your Curmudgeon has thought it timely to remind people of all the historical evidence that bears on that site as a place of worship. This post will introduce a series in which we will carefully and thoroughly examine all of that evidence.

    By the time we have gone through everything that is on point, you should have a good understanding of the issues at stake -- far better, alas, than those who are currently fighting over the Mount. The traditional views are by now so entrenched (going on 1,100 years) that one despairs of ever freeing them from the deep investment that so many have in them.

    Daunts, however, never stopped this Curmudgeon from proceeding ahead. If readers will bear with me to the end of the series, I hope to have demonstrated to them the strong support that exists for the following claims:

    A. Neither Solomon's Temple, nor Zerubbabel's, nor Herod's Temple ever stood upon what is now called "Temple Mount".

    B. Solomon's Temple was burned and destroyed by Nebuchadnezzar in 586 B.C. Zerubbabel's rebuilding of that Temple, begun around 538 B.C., was replaced beginning in 19 B.C. by Herod's restoration of it. The latter stood until 70 A.D., when -- exactly as predicted by Jesus (Mt. 24:2) -- the Romans tore it down and dug up all its foundations in reprisal for the Jewish rebellion that started in 66 A.D.

    C. What is now called "Temple Mount" in Jerusalem is the foundation that remains of the Roman pretorium and fortress there, as finally enlarged by Herod and then by the Romans themselves, and that was known to Josephus (the first-century historian of the Jewish War) as "the Antonia Fortress", named by Herod after his patron Mark Antony.

    D. The site for the three great Jewish temples was downslope from the Antonia Fortress, on a lower plateau that was originally a threshing floor when King David, on God's direct command, purchased it from its Jebusite owner as the site for the future "House of God" which it fell to Solomon to build. (See the diagrams at the previous link; see 1 Chr. 21:15-18.)

    E. This site was very close to old Jerusalem's only natural spring, the Gihon, whose clear and abundant waters were used to clean the altar and Temple after the regular animal sacrifices that took place there.

    F. The so-called Temple Mount had (and has) no such natural water source. The Roman camp there was at first entirely dependent on cisterns constructed by King Herod, but at the time Solomon built his temple, the rocky crag that Herod eventually leveled to build the Antonia Fortress had no water source of any kind, and would therefore never have been considered as the site for a temple.

    G. The actual Temple site, which the Romans destroyed utterly so that there was not one stone left even of its foundations, will never be capable of being verified through archaeological excavations. In contrast, over 10,000 huge stones still remain of the foundation walls for the Antonia Fortress, which the Romans naturally left intact, as they continued to use it as an army camp until around 329 A.D.

    H. Thus the much-revered "Wailing Wall" -- the western wall of the Antonia foundations at which so many pious Jews gather each day and lift their prayers to God for the rebuilding of their Temple is -- if only they knew it! -- not part of Herod's former temple at all.

    I. When Caliph Omar conquered Jerusalem in 638 A.D., the Christians had earlier built a church over the rock at the center of the Antonia platform. This church venerated the supposed site upon which Jesus stood when Pilate sentenced him -- since Pilate was in the pretorium with his troops at the time of the Passover festival. Some Christians even claimed that there was a footprint of Jesus still visible on the rock. Omar, naturally enough, wanted to honor Mohammed rather than Jesus, so he built the Al Aqsa mosque at the southern end of the Antonia platform, where it stands today.

    J. But Omar's later successor had no such compunctions about the Christian church over the rock. Abd al-Malik claimed that the rock in fact was the one from which Mohammed departed this earth for heaven on horseback. He and his followers invented a number of other myths about the rock, and began the cult that causes Muslims today to recognize the spot as Islam's third holiest place.  Abd al-Malik erected the Dome of the Rock above it in 691-2, where it stands today; the tip of the rock is visible from a viewing platform in the center of the building.

    K. Given that the actual site for the Jews' own temples lies in an area of the City of David that Israel both owns and controls, there is nothing to hinder the Jews of today from rebuilding their temple -- nothing, that is, except well-entrenched tradition. There is a growing body of scholars, however, who today are reassessing that tradition in light of all the evidence that points to the Temple's true site near the spring of Gihon. Perhaps some day soon, the Jews' recognition of that site will lead to an end to the pointless disputes over the remains of an old Roman fortress.

    Have I whetted your appetite? Stay tuned as this series gets under way.

    Texas Court's Mighty Labor Is in Vain

    4/8/2018 2:58:00 PM
    The Second District Court of Appeals in Fort Worth has labored long and hard over the appeal taken by the Episcopal Church (USA) and its local diocese and parishes from the July 24, 2015 summary judgment order granted against them by Judge Chupp of the 141st District Court of Tarrant County. In the two years the appellate panel took after argument to decide the case, one of its members retired, but the other two soldiered on. Chief Justice Bonnie Sudderth authored the massive, 178-page opinion in the case; the remaining panel member, Associate Justice Gabriel, concurred without writing separately.

    (I shall refer to the case here as the "Salazar case" -- using the name of its first-listed defendant -- in order to distinguish it from the prior Episcopal Church case decided by the Texas Supreme Court in 2013.) As its length indicates, the Salazar opinion is thorough and careful -- but alas, length is no guarantee that the Court got it right. Along about page 130, C.J. Sudderth loses her way, goes down an older path that is now discredited, and ends up with a conclusion that contradicts her earlier premises.

    Need I add that the chief beneficiary of this judicial wayfaring is none other than ECUSA itself? Since it is likewise the chief architect of all the confusion in church property cases, it may now chalk up one more victim in its systematic campaign to establish itself as a church which no court in the land may touch. It confuses courts by bombarding them with reams and reams of religious and historical documents -- the Court in this case mentions (p. 41, n.41) that the record contains over 14,000 pages -- which it then proceeds to distort and misconstrue, using technical ecclesiastical concepts with which the secular courts are largely unfamiliar.

    In this case, C.J. Sudderth went to the extreme of diagramming a "decision tree" to assist her in finding her way through the forests of legal argument, fustian and mostly irrelevant documents. One version of the tree appears on page 103 of her opinion; a later one is at page 159.  Using either one, the careful reader can see at a glance where the court takes its misstep. From the one on page 103:

    The road map flashes yellow at the node "Hierarchical Church?"; a "yes" answer leads to the next (and highly misleading) node -- "Has highest church authority decided issue?"  Once the "yes" box is again chosen as the exit, the path is determined, and the erroneous conclusion ("Defer to highest church authority's decision") is unavoidable.

    A regular reader of this column should know by now of the church-property-law parameter called "neutral principles." The Court's decision tree acknowledges that Texas follows neutral principles in deciding church property disputes (see the very second node at the top of the tree).

    But by introducing and then opposing the terms "hierarchical" and "congregational" (see the lower middle of the tree), the Court actually jettisons "neutral principles" in favor of harking back to the 19th-century model of Watson v. Jones (1872), by which one "defers" to hierarchical churches, and follows majority rule in congregational ones.  By definition, a court that chooses to defer in its judgment to that of just one particular kind of church, but not to other kinds, is not applying "neutral" principles.

    In other words, a court cannot say with one breath that it follows neutral principles, and then with the next say that it has to defer to the highest tribunal in a so-called hierarchical church. If you would like to read an excellently reasoned exposition of why this is so, go no farther than this short amicus brief filed last week on behalf of 18 law school professors in support of the petition brought by the Rt. Rev. Mark Lawrence and his Diocese of South Carolina before the United States Supreme Court. (You may choose to read the whole brief, but the argument I am talking about begins on page 9 and runs to page 15.)

    Let us now see how this unfortunate departure from neutral principles lands the Second District Court of Appeals in a welter of contradictions.

    After reviewing the history of church property cases in the United States Supreme Court, and fleshing out what that Court meant by the term "neutral principles", the Texas Court of Appeals then focused on its own Supreme Court's recent decision in Masterson v. Diocese of Northwest Texas (Tex. 2013) 422 S.W.3d 594 as instructing how neutral principles of law are used to resolve church property disputes in Texas. It set out the following concise summary of Masterson's holdings (pp. 78-79):
    • Absent specific, lawful provisions in a corporation’s articles of incorporation or bylaws otherwise, whether and how a corporation’s directors or those entitled to control its affairs can change its articles of incorporation and bylaws are secular, not ecclesiastical matters, and an external entity—under the former or current statutory scheme—is not empowered to amend them absent specific, lawful provision in the corporate documents. Id. at 609–10 (citing Tex. Bus. Orgs. Code § 3.009; Tex. Rev. Civ. Stat. Ann. art. 1396–2.09).  

    • The TEC-affiliated bishop could, as an ecclesiastical matter, determine which faction of believers was recognized by and was the “true” church loyal to the Diocese and TEC, and courts must defer to such ecclesiastical decisions, but his decision identifying the loyal faction as the continuing parish does not necessarily determine the property ownership issue, and his decisions on secular legal questions such as the validity of the parish members’ vote to amend the bylaws and articles of incorporation are not entitled to deference. Id. at 610. 

    • If the title to the real property is in the corporation’s name and the language of the deeds does not provide for an express trust in favor of TEC or the Diocese, then the corporation owns the property. Id. 
    These propositions are all correct statements of Texas law as expounded in Masterson. Followed correctly, they should have led to a correct decision in the Fort Worth case. Instead, look where the Salazar court ended up:

    Despite repeating (at p. 171) the first paragraph from Masterson just quoted, and despite holding (ibid.) that "[a]s nothing in the Corporation’s [articles and bylaws] provides for TEC’s approval and nothing in our law precludes the amendments [to the articles and bylaws by the trustees of the Corporation] to exclude references to TEC, TEC lacks standing for a claim as to the Corporation," the Court nevertheless concludes that it is the TEC group, and not Bishop Iker and his trustees, who must be given control of the diocesan Corporation.

    Despite acknowledging that the trustees of Bishop Iker's diocesan Corporation had full power and authority to amend that Corporation's articles in 2006, before the diocese disaffiliated from ECUSA in 2008, the Court found that the latter vote automatically disqualified Bishop Iker and his trustees from continuing to hold office in the Corporation!

    Why? Look at the breathtaking non-sequitur in this argument (pp. 172-73):
    The schism gave rise to two distinct entities: one recognized by TEC as the Episcopal Diocese of Fort Worth and one self-identified by Appellees as such. The bylaws and articles do not provide a description of the characteristics of the diocese self-identified by Appellees, but they do require that elected trustees be either lay persons in good standing of a parish or mission, or canonically resident, in the entity identified by the Corporation’s board as “the body now known as the Episcopal Diocese of Fort Worth.” [Emphasis added.] As set out above, it is within TEC’s province to identify its diocese in the geographic area identified as Fort Worth and what it takes to be a member in good standing or canonically resident therein. Accordingly, on November 15, 2008, when Appellees voted to disaffiliate, it was TEC’s prerogative to determine whether the board members of the diocese formerly associated with TEC had become disqualified under the Corporation’s bylaws.
    It simply does not logically follow that if ECUSA (what the court calls "TEC") had no ability to change the officers or amend the bylaws or articles of the Diocesan Corporation, it nevertheless had the metaphysical ability to "disqualify" -- retroactively! -- those officers once the Diocese had voted to disaffiliate and separate themselves from ECUSA's jurisdiction.

    The Court fails to trace the secular, legal existence of the entities involved. As it acknowledges, prior to the vote to disaffiliate, there was only one diocesan Corporation. But that is equally true immediately after the vote to disaffiliate! There were not automatically two Corporations thus brought into legal existence by the vote to disaffiliate -- the second one had first to be legally formed by the ECUSA dissenters under Texas law and then file papers to incorporate, i.e., to be recognized as a corporate entity in the eyes of the State of Texas. That process took several months -- and only then was there a separate entity which ECUSA was capable of "recognizing" as its own "Diocese of Fort Worth."

    The second entity not only began its existence long after the first; it also had entirely new offices at a new physical address, new telephone numbers, new officers and directors, as well as a new interim bishop; and a very different set of governing documents when compared to the original Corporation.

    Thus the Court engages in a metaphysical sleight of hand when it purports to give ECUSA (and only because it is a "hierarchical" church, remember) the ability to usurp and take over the governance of Bishop Iker's Corporation, in a fashion wholly at odds with the Masterson decision.

    To demonstrate the folly of the Court's illogic, one has only to ask this question: So ECUSA and its Fort Worth group now get to move into the offices and take over all the property belonging to Bishop Iker's Corporation? Well, what becomes of the new corporation that ECUSA had formed following the disaffiliation of the old one? Bishop Iker can scarcely succeed to that corporation -- does it just lie forever dormant and vacant? And does Bishop Iker now have to organize a third corporation under Texas law? This is the kind of nonsense that flows from a failure to keep a proper track of the various legal entities, all the while supposedly "deferring" to the actions of a body that will twist and turn the law to any degree necessary to serve its own greedily chomping maw, swallowing up all the church real property it can see around it, whether it has use for it or not.

    To labor so long, and to come out with such a mockery of neutral principles -- the Texas Court of Appeals has put its name to a genuine travesty of justice. Bishop Iker and his attorneys are not about to let this result stand. Meanwhile, we can all pray for the inwardly collapsing Episcopal Church -- falling in on its very substance as, like some sort of dying ecclesiastical nova, it expels and consumes all that had kept it functioning until this century. May it come to its senses, and stop all this legal manipulation, misdirection and misguidance of the secular courts to gain what is at best a short-term, and eventually suicidal, advantage.




    Don't Get Drawn In

    3/26/2018 12:33:00 PM
    Your Curmudgeon, it is true, swore off getting involved in the current political miasma: there was nothing to be gained from trying to make one's voice heard in the welter of so much fake news and disinformation. I advised my readers to remain above the fray -- and that remains good advice.

    However, there comes a time when the rule should be suspended, in the interest of keeping my regular readers confirmed in their course. And now, with President Trump's signing of the so-called "Omnibus Bill" -- a bloated monstrosity of legislative diarrhea if ever there was such a thing -- is the time to dive in and point out the facts which the mainstream media are withholding from the public.

    The Omnibus Bill, pretty much everyone agrees, is a spending bacchanal -- there are few limits to what the Democrats want to spend money on, and supposedly likewise for the RINOs who are currently controlling the flow of legislation in Congress. Planned Parenthood?  It gets full funding, as always. The long-promised border wall? Only a stretch of fence is supposedly funded, and the President is supposedly barred from spending any of the fence money on his Wall.

    Well, your Curmudgeon is here to tell you that what you read and see in the mainstream media on these points is all fake: it could not be farther from the Constitutional reality that our founders established in 1789.

    You see, under the Constitution and Article I, it is Congress' responsibility to pass a budget -- which blueprint, if Congress wants its budget to become a Law of the United States, binding on the President and other branches, has to be in the form of a Bill (see U.S. Constitution, Art. I, Sec. 7).

    As you may (or may not) have read in the media, the so-called "Omnibus Bill" was not a bill at all, but was technically a "Continuing Resolution." That is to say, although it likewise requires a presidential signature before it becomes effective (see Sec. 7 again), it does not bind the Executive branch the way that a Law does.

    Let that sink in a bit. It means that although Congress, for example, voted funds to be spent on Planned Parenthood, there is no legal consequence for President Trump if he instructs his Secretary to sequester those funds. Congress may complain all it wants, but until it passes an actual budget bill, it has no means of forcing the President's hand.

    And if Congress could have passed a budget bill, you may be certain it would have. It took the easy way out, drafting a 2,200-page Continuing Resolution in secret that kept the rank-and-file members themselves from knowing what was in it until they passed it. Passing a budget would have required the various committees with jurisdiction to break out the numbers, hold public hearings, and engage in compromises and trade-offs to get each segment of the budget out of committee and to the floor for a final vote. (That's the way Congress is supposed to function -- remember your basic civics?)

    Unlike a real budget, which remains in effect throughout an entire fiscal year, the Continuing Resolution is good for just six months, until the current fiscal year ends on September 30. From now until then, therefore, it will be Trump, not Congress, who controls the purse strings.

    I have heard speculation that President Trump signed the Resolution in full knowledge of this fact (given that he relies on his capable and experienced budget director, Mike Mulvaney). At the same time, he sent a signal to Congress by warning that he would "never, ever" sign such a resolution again. The speculation is that Trump may be setting up Congress for a big showdown this October, just in advance of the November elections. His message to the voters would be, in effect, "Don't re-elect any of these guys who think they can run the government by omnibus appropriations -- they're just flim-flamming you."

    At any rate, your Curmudgeon felt that this information was important enough to bring it to your attention, since you will never read about it in the national media. Watch and see what happens over the coming months -- the proof will be in how Trump authorizes (or withholds authorization for) his Cabinet secretaries to spend the money that Congress voted.

    The Press Has Not Learned Anything in 50 Years

    3/6/2018 11:47:00 PM
    From the book by Bret Baier, Three Days in January -- Dwight Eisenhower's Final Mission (New York: William Morrow [HarperCollins] 2017), presented here without comment (pp. 276-77):
    The weight of office having been lifted, those around him [Eisenhower] observed he grew warmer and mellower with age. Still, Ike kept his edge. Speaking to Ike and Mamie on the occasion of their fiftieth wedding anniversary [on July 1, 1966], an interviewer asked Ike whether he would marry the same girl if given a chance to do it all over again. Ike roared. "That's the worst question I ever heard! There's only one possible answer."

    Diocese of South Carolina Asks US Supreme Court for Review [UPDATED]

    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.

    [UPDATE 02/27/2018: The Supreme Court has ordered the respondents -- ECUSA and ECSC -- to file a brief in response to the petition by March 29. This means that the Court did not want to act on the petition before hearing from both sides. (Ordinarily, a respondent in the Supreme Court has the option of waiving the filing of a response to a petition for certiorari [review]. But not this time.)

    With respondents' brief due on March 29, any reply brief from the petitioners will be filed by April 9, and the Justices could consider the petition at one of their Friday conferences on April 20 or 27. If the respondents ask for an extension of time, this sequence will stretch out by thirty days or more.]






    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: