Anglican Curmudgeon

Now, THIS Is a Hierarchical Church

ashaley@nccn.net (A. S. Haley) — Tue, 10 Nov 2009 00:59:00 +0000

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

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

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

BENEDICT XVI

APOSTOLIC CONSTITUTION ANGLICANORUM COETIBUS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[3] Dogmatic Constitution Lumen gentium, 1.

[4] Decree Unitatis redintegratio, 1.

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

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

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

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

[9] Dogmatic Constitution Lumen gentium, 8.

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

[11] Dogmatic Constitution Lumen gentium, 8.

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

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

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

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

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

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

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

[19] Cf. CIC, can. 511.

© Copyright 2009 - Libreria Editrice Vaticana

Putting It All Together

ashaley@nccn.net (A. S. Haley) — Sat, 07 Nov 2009 16:04:00 +0000

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Religion of Peace, and a Gospel of Inclusion

ashaley@nccn.net (A. S. Haley) — Fri, 06 Nov 2009 19:59:00 +0000

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Go figure.

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

ashaley@nccn.net (A. S. Haley) — Fri, 06 Nov 2009 14:41:00 +0000

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

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

Can a Diocese Leave ECUSA? Squaring Off in San Joaquin

ashaley@nccn.net (A. S. Haley) — Thu, 05 Nov 2009 17:51:00 +0000

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

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

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

Chronology of Pertinent Events
The Diocese of San Joaquin

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

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

4. On December 8, 2007, the delegates to the Diocese's Annual Convention voted overwhelmingly (90 percent) to end the Diocese's spiritual affiliation with the Episcopal Church and affiliate instead with the Anglican Province of the Southern Cone of America, another member church of the worldwide Anglican Communion which offered the Diocese spiritual protection on an "emergency and pastoral basis" so that it "may continue in the mainstream of the Anglican Communion and be faithful to its Biblical and historic teaching and witness; .... "

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

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

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

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

6. Plaintiffs deny the allegations in paragraph 6.

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

7. Plaintiffs deny the allegations in paragraph 7.

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

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

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

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

9. Plaintiffs deny the allegations in paragraph 9.

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

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

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

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

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

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

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

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

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

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

Would the real “Episcopal Church” please stand up?

[To be continued.]

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

ashaley@nccn.net (A. S. Haley) — Wed, 04 Nov 2009 15:16:00 +0000

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ashaley@nccn.net (A. S. Haley) — Tue, 03 Nov 2009 20:59:00 +0000

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

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

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

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

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

The action below arises from an internal church dispute over the ownership and control of real and personal property located in nine Central Valley counties. Its outcome will affect thousands of worshipers attending weekly services at some forty missions and parishes, from Stockton to Bakersfield. In the context of Episcopal Church litigation, the dispute presents a case of first impression. For the first time ever, the Episcopal Church is pitted in a property dispute against an autonomous member diocese -- as opposed to an individual parish under diocesan control. The member-diocese was the Diocese of San Joaquin as it existed on December 8, 2007, when the delegates to its Annual Convention voted overwhelmingly (90 percent) to end the Diocese's spiritual affiliation with the Episcopal Church and affiliate instead with the Anglican Province of the Southern Cone of America, another member church of the worldwide Anglican Communion.

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

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

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

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

. . .

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

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

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

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

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

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

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

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

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

Time to Push Back -- Hard

ashaley@nccn.net (A. S. Haley) — Mon, 02 Nov 2009 20:22:00 +0000

Folks, now is the time to let your voice be heard in Washington. The bloated mess of "health care reform" legislation which Nancy Pelosi, Harry Reid and their cohorts are trying to push through Congress will create no less than 111 new federal bureaucracies (that's as many dioceses as ECUSA presently claims to have!) "to harass our people, and eat out their substance." (See the full list, with references to the pages of the draft bill, below.) It is the biggest single power grab ever, and will change the entire manner in which government relates to its citizens.

This is not a partisan plea, but a request for citizens of all stripes and affiliations to make their voices heard against this attempted government takeover of one-sixth of the whole economy. As you let the video below play, scroll down through the list of 111 new government entities and functions which will be brought into being by this one massive bill. Then call your representative and Senators, and let them know in no uncertain terms that they had better vote it down, or else say goodbye to Washington.

If you have remained sitting on the sidelines up till now, it is time to get involved. Now is the time for all Americans to let their politicians know who really runs things in this country!

Here is the list of new bureaucracies, with specific references to the pages of the draft bill where they are named and authorized (you can download the bill from this link --but caution: it's a 3.2 MB .pdf file):

1. Retiree Reserve Trust Fund (Section 111(d), p. 61)

2. Grant program for wellness programs to small employers (Section 112, p. 62)

3. Grant program for State health access programs (Section 114, p. 72)

4. Program of administrative simplification (Section 115, p. 76)

5. Health Benefits Advisory Committee (Section 223, p. 111)

6. Health Choices Administration (Section 241, p. 131)

7. Qualified Health Benefits Plan Ombudsman (Section 244, p. 138)

8. Health Insurance Exchange (Section 201, p. 155)

9. Program for technical assistance to employees of small businesses buying Exchange coverage (Section 305(h), p. 191)

10. Mechanism for insurance risk pooling to be established by Health Choices Commissioner (Section 306(b), p. 194)

11. Health Insurance Exchange Trust Fund (Section 307, p. 195)

12. State-based Health Insurance Exchanges (Section 308, p. 197)

13. Grant program for health insurance cooperatives (Section 310, p. 206)

14. "Public Health Insurance Option" (Section 321, p. 211)

15. Ombudsman for "Public Health Insurance Option" (Section 321(d), p. 213)

16. Account for receipts and disbursements for "Public Health Insurance Option" (Section 322(b), p. 215)

17. Telehealth Advisory Committee (Section 1191 (b), p. 589)

18. Demonstration program providing reimbursement for "culturally and linguistically appropriate services" (Section 1222, p. 617)

19. Demonstration program for shared decision making using patient decision aids (Section 1236, p. 648)

20. Accountable Care Organization pilot program under Medicare (Section 1301, p. 653)

21. Independent patient-centered medical home pilot program under Medicare (Section 1302, p. 672)

22. Community-based medical home pilot program under Medicare (Section 1302(d), p. 681)

23. Independence at home demonstration program (Section 1312, p. 718)

24. Center for Comparative Effectiveness Research (Section 1401(a), p. 734)

25. Comparative Effectiveness Research Commission (Section 1401(a), p. 738)

26. Patient ombudsman for comparative effectiveness research (Section 1401(a), p. 753)

27. Quality assurance and performance improvement program for skilled nursing facilities (Section 1412(b)(1), p. 784)

28. Quality assurance and performance improvement program for nursing facilities (Section 1412 (b)(2), p. 786)

29. Special focus facility program for skilled nursing facilities (Section 1413(a)(3), p. 796)

30. Special focus facility program for nursing facilities (Section 1413(b)(3), p. 804)

31. National independent monitor pilot program for skilled nursing facilities and nursing facilities (Section 1422, p. 859)

32. Demonstration program for approved teaching health centers with respect to Medicare GME (Section 1502(d), p. 933)

33. Pilot program to develop anti-fraud compliance systems for Medicare providers (Section 1635, p. 978)

34. Special Inspector General for the Health Insurance Exchange (Section 1647, p. 1000)

35. Medical home pilot program under Medicaid (Section 1722, p. 1058)

36. Accountable Care Organization pilot program under Medicaid (Section 1730A, p. 1073)

37. Nursing facility supplemental payment program (Section 1745, p. 1106)

38. Demonstration program for Medicaid coverage to stabilize emergency medical conditions in institutions for mental diseases (Section 1787, p. 1149)

39. Comparative Effectiveness Research Trust Fund (Section 1802, p. 1162)

40. "Identifiable office or program" within CMS to "provide for improved coordination between Medicare and Medicaid in the case of dual eligibles" (Section 1905, p. 1191)

41. Center for Medicare and Medicaid Innovation (Section 1907, p. 1198)

42. Public Health Investment Fund (Section 2002, p. 1214)

43. Scholarships for service in health professional needs areas (Section 2211, p. 1224)

44. Program for training medical residents in community-based settings (Section 2214, p. 1236)

45. Grant program for training in dentistry programs (Section 2215, p. 1240)

46. Public Health Workforce Corps (Section 2231, p. 1253)

47. Public health workforce scholarship program (Section 2231, p. 1254)

48. Public health workforce loan forgiveness program (Section 2231, p. 1258)

49. Grant program for innovations in interdisciplinary care (Section 2252, p. 1272)

50. Advisory Committee on Health Workforce Evaluation and Assessment (Section 2261, p. 1275)

51. Prevention and Wellness Trust (Section 2301, p. 1286)

52. Clinical Prevention Stakeholders Board (Section 2301, p. 1295)

53. Community Prevention Stakeholders Board (Section 2301, p. 1301)

54. Grant program for community prevention and wellness research (Section 2301, p. 1305)

55. Grant program for research and demonstration projects related to wellness incentives (Section 2301, p. 1305)

56. Grant program for community prevention and wellness services (Section 2301, p. 1308)

57. Grant program for public health infrastructure (Section 2301, p. 1313)

58. Center for Quality Improvement (Section 2401, p. 1322)

59. Assistant Secretary for Health Information (Section 2402, p. 1330)

60. Grant program to support the operation of school-based health clinics (Section 2511, p. 1352)

61. Grant program for nurse-managed health centers (Section 2512, p. 1361)

62. Grants for labor-management programs for nursing training (Section 2521, p. 1372)

63. Grant program for interdisciplinary mental and behavioral health training (Section 2522, p. 1382)

64. "No Child Left Unimmunized Against Influenza" demonstration grant program (Section 2524, p. 1391)

65. Healthy Teen Initiative grant program regarding teen pregnancy (Section 2526, p. 1398)

66. Grant program for interdisciplinary training, education, and services for individuals with autism (Section 2527(a), p. 1402)

67. University centers for excellence in developmental disabilities education (Section 2527(b), p. 1410)

68. Grant program to implement medication therapy management services (Section 2528, p. 1412)

69. Grant program to promote positive health behaviors in underserved communities (Section 2530, p. 1422)

70. Grant program for State alternative medical liability laws (Section 2531, p. 1431)

71. Grant program to develop infant mortality programs (Section 2532, p. 1433)

72. Grant program to prepare secondary school students for careers in health professions (Section 2533, p. 1437)

73. Grant program for community-based collaborative care (Section 2534, p. 1440)

74. Grant program for community-based overweight and obesity prevention (Section 2535, p. 1457)

75. Grant program for reducing the student-to-school nurse ratio in primary and secondary schools (Section 2536, p. 1462)

76. Demonstration project of grants to medical-legal partnerships (Section 2537, p. 1464)

77. Center for Emergency Care under the Assistant Secretary for Preparedness and Response (Section 2552, p. 1478)

78. Council for Emergency Care (Section 2552, p 1479)

79. Grant program to support demonstration programs that design and implement regionalized emergency care systems (Section 2553, p. 1480)

80. Grant program to assist veterans who wish to become emergency medical technicians upon discharge (Section 2554, p. 1487)

81. Interagency Pain Research Coordinating Committee (Section 2562, p. 1494)

82. National Medical Device Registry (Section 2571, p. 1501)

83. CLASS Independence Fund (Section 2581, p. 1597)

84. CLASS Independence Fund Board of Trustees (Section 2581, p. 1598)

85. CLASS Independence Advisory Council (Section 2581, p. 1602)

86. Health and Human Services Coordinating Committee on Women's Health (Section 2588, p. 1610)

87. National Women's Health Information Center (Section 2588, p. 1611)

88. Centers for Disease Control Office of Women's Health (Section 2588, p. 1614)

89. Agency for Healthcare Research and Quality Office of Women's Health and Gender-Based Research (Section 2588, p. 1617)

90. Health Resources and Services Administration Office of Women's Health (Section 2588, p. 1618)

91. Food and Drug Administration Office of Women's Health (Section 2588, p. 1621)

92. Personal Care Attendant Workforce Advisory Panel (Section 2589(a)(2), p. 1624)

93. Grant program for national health workforce online training (Section 2591, p. 1629)

94. Grant program to disseminate best practices on implementing health workforce investment programs (Section 2591, p. 1632)

95. Demonstration program for chronic shortages of health professionals (Section 3101, p. 1717)

96. Demonstration program for substance abuse counselor educational curricula (Section 3101, p. 1719)

97. Program of Indian community education on mental illness (Section 3101, p. 1722)

98. Intergovernmental Task Force on Indian environmental and nuclear hazards (Section 3101, p. 1754)

99. Office of Indian Men's Health (Section 3101, p. 1765)

100.Indian Health facilities appropriation advisory board (Section 3101, p. 1774)

101.Indian Health facilities needs assessment workgroup (Section 3101, p. 1775)

102.Indian Health Service tribal facilities joint venture demonstration projects (Section 3101, p. 1809)

103.Urban youth treatment center demonstration project (Section 3101, p. 1873)

104.Grants to Urban Indian Organizations for diabetes prevention (Section 3101, p. 1874)

105.Grants to Urban Indian Organizations for health IT adoption (Section 3101, p. 1877)

106.Mental health technician training program (Section 3101, p. 1898)

107.Indian youth telemental health demonstration project (Section 3101, p. 1909)

108.Program for treatment of child sexual abuse victims and perpetrators (Section 3101, p. 1925)

109.Program for treatment of domestic violence and sexual abuse (Section 3101, p. 1927)

110.Native American Health and Wellness Foundation (Section 3103, p. 1966)

111.Committee for the Establishment of the Native American Health and Wellness Foundation (Section 3103, p. 1968)

H/T: Powerline

A Documentary History of ECUSA's Constitution

ashaley@nccn.net (A. S. Haley) — Sat, 31 Oct 2009 14:12:00 +0000

There is much litigation going on currently in State courts over the polity of the Episcopal Church. At the same time, there do not appear to be any online versions readily available of ECUSA's early Constitution, either as originally adopted or as subsequently from time to time amended. The commentary on the history of the Constitution and Canons published in 1981 by Messrs. White & Dykman, and reprinted in 1997, is available for download from this site (along with two supplements written by others, carrying the account through General Convention 1991). However, even it does not have in one place a complete version of ECUSA's original Constitution, which is so important for understanding the nature of ECUSA's mixed form of ecclesiastical polity.

Since the nature of ECUSA's polity is so much in dispute these days, I have decided that as a public service, I will publish in this post the earliest version of the Church's Constitution, as well as some further historical materials leading up to its formulation. The purpose will be so that everyone may access and understand the Church's organic evolution (see this earlier post for even more detail and background), out of a meeting of delegates from the various successors, in each new State, of the previously established Church of England in the respective colonies.

Let us begin with the six principles for the formation of a national replacement in the States for the Church of England, as it had existed in the Colonies prior to the Revolutionary War. The Rev. Dr. William White, of Christ Church in Philadelphia, later one of the first Bishops in the newly established Church, first proposed them in a pamphlet which he had published in 1782, entitled The Case of the Episcopal Churches in the United States Considered:

I. That the Episcopal Church in these States is and ought to be independent of all foreign Authority, ecclesiastical or civil.

II. That it hath and ought to have, in common with all other religious Societies, full and exclusive Powers to regulate the Concerns of its own Communion.

III. That the Doctrines of the Gospel be maintained as now professed by the Church of England; and Uniformity of Worship be continued, as near as may be, to the Liturgy of the said Church.

IV. That the Succession of the Ministry be agreeably to the Usage which requireth the three Orders of Bishops, Priests, and Deacons ; that the Rights and Powers of the same respectively be ascertained, and that they be exercised according to reasonable Laws, to be duly made.

V. That to make Canons or Laws, there be no other Authority than that of a Representative Body of the Clergy and Laity conjointly.

VI. That no Powers be delegated to a general ecclesiastical Government, except such as cannot conveniently be exercised by the Clergy and Vestries in their respective Congregations.

(Emphasis added.) The last principle thus expressed from the very outset the belief that the "general ecclesiastical Government" would consist of powers delegated to it from local congregations. Those who contend that the lack of any limitation in the powers so delegated means that they are unlimited, or that once delegated, they may not be withdrawn, are ignorant of this documentary history of how General Convention came into being.

This pamphlet had a wide reception in the mid-Atlantic States, and served as the basis for a further "Declaration of certain fundamental rights" agreed upon by the assembled former Anglican clergy of the State of Maryland, at a gathering in Annapolis in August 1783, which stated in relevant part as follows:

DECLARATION of certain fundamental Rights and Liberties of the Protestant Episcopal Church of Maryland, &C.

WHEREAS by the CONSTITUTION and FORM of Government of this State "All Persons professing the Christian Religion, are equally entitled to Protection in their Religious Liberty . . . And Whereas the ecclesiastical and spiritual Independence of the different religious Denominations, Societies, Congregations, and Churches of Christians in this State, necessarily follows from, or is included in, their civil Independence,

WHEREFORE WE the Clergy of the Protestant Episcopal Church of Maryland (heretofore denominated the Church of England, as by Law established) with all Duty to the civil Authority of the State, and with all Love and Good-will to our Fellow-Christians of every other religious Denomination, do hereby declare, make known, and claim, the following, as certain of the fundamental Rights and Liberties inherent in and belonging to the said Episcopal Church . . .

I. WE consider it as the undoubted Right of the said Protestant Episcopal Church, in common with other Christian Churches under the American Revolution, to compleat and preserve herself as an entire Church, agreeably to her ancient Usages and Profession, and to have the free Enjoyment and free Exercise of those purely spiritual Powers, which are essential to the Being of every Church or Congregation of the faithful, and which, being derived only from CHRIST and his APOSTLES, are to be maintained independent of every foreign or other Jurisdiction, so far as may be consistent with the civil Rights of Society.

II. That ever since the Reformation, it hath been the received Doctrine of the Church whereof we are Members . . . "That there be these three Orders of Ministers in CHRIST'S Church, BISHOPS, PRIESTS, and DEACONS," and that an Episcopal Ordination and Commission are necessary to the valid Administration of the Sacraments, and the due Exercise of the Ministerial Functions in the said Church.

III. That, without calling in Question the Rights, Modes, and Forms of any other Christian Churches or Societies, or wishing the least Contest with them on that Subject, we consider and declare it to be an essential Right of the said Protestant Episcopal Church to have and enjoy the Continuance of the said three Orders of Ministers forever, so far as concerns Matters purely spiritual; and that no Persons, in the Character of Ministers, except such as are in the Communion of the said Church, and duly called to the Ministry by regular Episcopal Ordination, can or ought to be admitted into, or enjoy any of the "Churches, Chapels, Glebes, or other Property," formerly belonging to the Church of England in this State, and which by the Constitution and Form of Government is secured to the said Church forever, by whatsoever Name, she the said Church, or her superior Order of Ministers, may in future be denominated.

IV. That as it is the Right, so it will be the Duty, of the said Church, when duly organized, constituted, and represented in a Synod or Convention of the different Orders of her Ministry and People, to revise her Liturgy, Forms of Prayer, and public Worship, in order to adapt the same to the late Revolution and other local Circumstances of America; which it is humbly conceived, may and will be done, without any other or farther Departure from the venerable Order and beautiful Forms of Worship of the Church from whence we sprung, than may be found expedient in the Change of our Situation from a DAUGHTER to a SISTER-CHURCH.

(Emphasis again added.) The editor of the volume in which this declaration is to be found appends a piece of contemporary correspondence, with the following introductory remarks (I have added the italics):

In connection with these "Fundamental Principles," which appear not only in this printed address, but again and again in subsequent Journals and fragments of Journals of the Maryland Conventions, it may be well to subjoin the following important letter, from the Rev. Dr. William Smith, the leading spirit in the Maryland organization, which bears strongly upon the question of diocesan independence, as held by the framers of our ecclesiastical Constitution. It forms, moreover, a fitting preface to the "Proceedings" it so clearly indicates in advance.

Dear Sir:

The Clergy of Maryland are to meet (in pursuance of the sanction obtained from the G. Assembly) on the 13th of this Month; but as Mr. Gates and myself were to call this Meeting, we found on consulting some of our nearest Brethren, that they did not think it proper, nor that we were authorized, to call any Clergy to our assistance from the neighboring States that the Episcopal Clergy of Maryland were in some respects peculiarly circumstanced, and ought, in the first instance, to have a preparatory Convention or Conference, to consider and frame a DECLARATION of their own Rights as one of the Churches of a separate and independent State, to agree upon some articles of Government and Unity among themselves, to fix some future Time of meeting by adjournment, to appoint a Committee to bring in a Plan of SOME FEW alterations that may be found necessary in the Liturgy and Service of the Church, and by the authority of this first Meeting to open a correspondence on the subject with the Clergy of the neighboring States, and to have some speedy future and more general meeting with the Clergy of those States, or Committees from them, to unite if possible in the alterations to be made, which many among us think cannot have a full Church Ratification, till we have on some plan or another the three Orders of Bishops, Priests and Deacons to concur in the same. What STATE or civic ratification may be necessary, or whether any is a question yet to be determined. In Maryland, I presume, a few words of a Declaratory Act, that a Clergy, ordained in such a form, and using a Liturgy with such alterations as may be agreed upon, are to be considered as entitled to the Glebes, Churches and other property declared by the Constitution to belong to the CHURCH OF ENGLAND for ever. I say such a short Act as this, or the Opinion of the Judges that such Act is not necessary, is I conceive all that will be wanted.

Chester: August 4th, 1783.
To Rev. Dr. WHITE.
From the Bishop White MSS., in the possession of the Rev. F. L. Hawks, D.D.

There followed a gathering of clergy and laity from New York, Pennsylvania and New Jersey at Brunswick, New Jersey on May 11, 1784, which resulted in a determination to gather again in October, and to invite representatives from churches in additional States. This meeting also spurred the clergy and laity from the parishes in Pennsylvania to begin their own organizing. To that end, they assembled in Philadelphia toward the end of May 1784. The meeting was the first of its kind in the former Colonies to include laity from each and every parish. It ended up by adopting the following recommendation concerning the creation of a "standing committee" -- the first use of this term in the nascent Church:

That they think it expedient to appoint a standing committee of the Episcopal church in this state, consisting of clergy and laity; that the said committee be empowered to correspond and confer with representatives from the Episcopal church in the other states, or any of them; and assist in framing an ecclesiastical government; that a constitution of ecclesiastical government, when framed, be reported to the several congregations, through their respective ministers, church-wardens, and vestrymen, to be binding on all the congregations consenting to it, as soon as a majority of the congregations shall have consented; that a majority of the committee, or any less number by them appointed, be a quorum; that they be desired to keep minutes of their proceedings; and that they be bound by the following instructions or fundamental principles. [There follow the six fundamental principles first set out by the Rev. Dr. White in his pamphlet.]

The "standing committee" so formed did communicate with clergy and laity in other States, as I have already related in this earlier post. This resulted in a series of further meetings and drafts of a national constitution, as I have spelled out in great detail there, and I will not repeat here what I said earlier. My concern from this point on is to set out the version of the Church Constitution as finally agreed upon by the assembled representatives of the Churches in the States of Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia and South Carolina in the city of Philadelphia in September-October 1789, and as finally ratified by diocesan conventions in each of those States, since the text does not readily appear elsewhere on the Web. Here, then, is the text of that original Constitution, in full:

THE CONSTITUTION
OF THE PROTESTANT EPISCOPAL CHURCH IN THE
UNITED STATES OF AMERICA.

ART. 1. There shall be a General Convention of the Protestant Episcopal Church in the United States of America on the second Tuesday of September, in the year of our Lord 1792, and on the second Tuesday of September in every third year afterwards, in such place as shall be determined by the Convention; and special meetings may be called at other times, in the manner hereafter to be provided for; and this Church, in a majority of the States which shall have adopted this Constitution, shall be represented, before they shall proceed to business, except that the representation from two States shall be sufficient to adjourn; and in all business of the Convention, freedom of debate shall be allowed.

ART. 2. The Church in each State shall be entitled to a representation of both the Clergy and the Laity, which representation shall consist of one or more Deputies, not exceeding four of each Order, chosen by the Convention of the State: and in all questions, when required by the Clerical or Lay representation from any State, each Order shall have one vote; and the majority of suffrages by States shall be conclusive in each Order, provided such majority comprehend a majority of the States represented in that Order. The concurrence of both Orders shall be necessary to constitute a vote of the Convention. If the Convention of any State should neglect or decline to appoint Clerical Deputies, or if they should neglect or decline to appoint Lay Deputies, or if any of those of either Order appointed should neglect to attend, or be prevented by sickness or any other accident, such State shall nevertheless be considered as duly represented by such Deputy or Deputies as may attend, whether lay or clerical. And if, through the neglect of the Convention of any of the Churches which shall have adopted, or may hereafter adopt this Constitution, no Deputies, either Lay or Clerical, should attend at any General Convention, the Church in such State shall nevertheless be bound by the acts of such Convention.

ART. 3. The Bishops of this Church, when there shall be three or more, shall, whenever General Conventions are held, form a separate House, with a right to originate and propose acts for the concurrence of the House of Deputies, composed of Clergy and Laity ; and when any proposed act shall have passed the House of Deputies, the same shall be transmitted to the House of Bishops, who shall have a negative thereupon unless adhered to by four-fifths of the other House. And all acts of the Convention shall be authenticated by both Houses. And in all cases, the House of Bishops shall signify to the Convention their approbation or disapprobation, the latter with their reasons in writing, within three days after the proposed act shall have been reported to them for concurrence, and in failure thereof it shall have the operation of a law. But until there shall be three or more Bishops as aforesaid, any Bishop attending a General Convention shall be a member ex officio, and shall vote with the Clerical Deputies of the State to which he belongs; and a Bishop shall then preside.

ART. 4. The Bishop or Bishops in every State shall be chosen agreeably to such rules as shall be fixed by the Convention of that State. And every Bishop of this Church shall confine the exercise of his Episcopal office to his proper Diocese or District, unless requested to ordain or confirm, or perform any other act of the Episcopal office, by any Church destitute of a Bishop.

ART. 5. A Protestant Episcopal Church in any of the United States not now represented, may, at any time hereafter, be admitted, on acceding to this Constitution.

ART. 6. In every State, the mode of trying Clergymen shall be instituted by the Convention of the Church therein. At every trial of a Bishop there shall be one or more of the Episcopal Order present: and none but a Bishop shall pronounce sentence of deposition or degradation from the Ministry on any Clergyman, whether Bishop, or Presbyter, or Deacon.

ART. 7. No person shall be admitted to Holy Orders, until he shall have been examined by the Bishop and by two Presbyters, and shall have exhibited such testimonials and other requisites as the Canons in that case provided may direct. Nor shall any person be ordained until he shall have subscribed the following declaration: "I do believe the Holy Scriptures of the Old and New Testament to be the word of God, and to contain all things necessary to salvation: and I do solemnly engage to conform to the doctrines and worship of the Protestant Episcopal Church in these United States." No person ordained by a foreign Bishop shall be permitted to officiate as a Minister of this Church, until he shall have complied with the Canon or Canons in that case provided, and have also subscribed the aforesaid declaration.

ART. 8. A Book of Common Prayer, Administration of the Sacraments, and other Rites and Ceremonies of the Church, Articles of Religion, and a form and manner of making, ordaining, and consecrating Bishops, Priests, and Deacons, when established by this or a future General Convention, shall be used in the Protestant Episcopal Church in those States, which shall have adopted this Constitution.

ART. 9. This Constitution shall be unalterable, unless in General Convention by the Church in a majority of the States which may have adopted the same; and all alterations shall be first proposed in one General Convention, and made known to the several State Conventions, before they shall be finally agreed to, or ratified, in the ensuing General Convention.

Done in General Convention of the Bishops, Clergy, and Laity of the Church, the second day of October, 1789, and ordered to be transcribed into the Book of Records, and subscribed, which was done as follows, viz.

IN THE HOUSE OF BISHOPS.

SAMUEL SEABURY, D.D., Bishop of Connecticut.

WILLIAM WHITE, D.D., Bishop of the Protestant Episcopal Church, Pennsylvania.

IN THE HOUSE OF CLERICAL AND LAY DEPUTIES.

WILLIAM SMITH, D.D., President of the House of Clerical and Lay Deputies, and Clerical Deputy from Maryland.

NEW HAMPSHIRE & MASSACHUSETTS

SAMUEL PARKER, D.D., Rector of Trinity Church, Boston.

CONNECTICUT

BELA HUBBARD, A.M., Rector of Trinity Church, New Haven.
ABRAHAM JARVIS, A.M., Rector of Christ Church, Middletown.

NEW YORK

BENJAMIN MOORE, D.D., } Assistant Ministers of
ABRAHAM BEACH, D.D., } Trinity Church, in the City of New York.
RICHARD HARRISON, Lay Deputy from the State of New York.

NEW JERSEY

UZAL OGDEN, Rector of Trinity Church, Newark.
WILLIAM FRAZER, A.M., Rector of St. Michael's Church, Trenton, and St. Andrew's Church, Amwell.
SAMUEL OGDEN, }
R. STRETTELL JONES, } Lay Deputies.

PENNSYLVANIA

SAMUEL MAGAW, D.D., Rector of St. Paul's, Philadelphia.
ROBERT BLACKWELL, D.D., Senior Assistant Minister of Christ Church and St. Peter's, Philadelphia.
JOSEPH G. J. BEND, Assistant Minister of Christ Church and St. Peter's, Philadelphia.
JOSEPH PILMORE, Rector of the United Churches of Trinity, St. Thomas, and All Saints.
GERARDUS CLARKSON, } Lay Deputies
TENCH COXE, } from the State
FRANCIS HOPKINSON, } of Pennsylva-
SAMUEL POWEL, } nia.

DELAWARE

JOSEPH COWDEN, A.M., Rector of St. Anne's.
ROBERT CLAY, Rector of Emanuel and St. James's Churches.

MARYLAND

JOHN BISSETT, A.M., Rector of Shrews bury Parish, Kent County.
JOHN RUMSEY, } Lay
CHARLES GOLDSBOROUGH, } Deputies.

VIRGINIA

JOHN BRACKEN, Rector of Bruton Parish, Williamsburg.
ROBERT ANDREWS, Lay Deputy.

SOUTH CAROLINA

ROBERT SMITH, D.D., Rector of St. Philip's Church, Charleston.
WILLIAM SMITH, } Lay Deputies from
WILLIAM BRISBANE, } the State of South Carolina.

Note the many features in common with the version we have today, as well as the provisions that have been greatly expanded (e.g., Art. V, on how dioceses form and join) and that were subsequently dropped altogether (e.g., the last sentence of Art. 2, as discussed and explained in the paper by Mark McCall published by the Anglican Communion Institute [see n. 44 and the text at that point]; repealed as part of the overhaul made in 1901.) As I deem it useful, I will document additional versions of the Constitution in subsequent posts.

Friday TED Talk: Bjarke Ingels Tells the Stories Behind His Amazing Architecture

ashaley@nccn.net (A. S. Haley) — Fri, 30 Oct 2009 14:31:00 +0000

Danish architect Bjarke Ingels, who heads up one of the most innovative design teams in the field today, tells with humor, sharp wit and images the stories behind three of the projects he has completed. In each one he shows how the designers' concern for connecting people with the functions made for a more humane and ecologically sensible environment. Don't miss his tale about proposing to ship Denmark's national treasure -- the "Little Mermaid" -- to China for an exhibition, along with her own crystal-clean harbor water as a backdrop, or his tale about transferring the ideas from a failed project in Iceland to a new one that recreated a national landmark for an urban environment in Malaysia. This talk was one of the very best at the TED 2009 Global Conference:

You may read more about Bjarke Ingels here; he is a principal of a firm appropriately named BIG (for Bjarke Ingels Group), in Denmark, and the TED blog has just published an interview with him. Watch the talk in high-resolution video from this link, and download the talk in that and other versions from this page. Best of all -- and save it for last -- is a visit to his firm's innovative Website (be sure your Java is up-to-date).

Striking out in Georgia

ashaley@nccn.net (A. S. Haley) — Wed, 28 Oct 2009 21:44:00 +0000

The Honorable Michael Karpf, Judge of the Superior Court in the Eastern District of Georgia, has now rendered his decision awarding ownership of the oldest Church in Georgia to the Episcopal Diocese of Georgia, and to ECUSA itself (which, paradoxically, as a common-law unincorporated association, is deemed incapable of holding any interests in property). I know that there will be knee-jerk reactions on both sides of the issue, but I refuse to respond in that fashion. On this blog, all that counts is faithful application of the actual law to the facts. Where the trial courts get either the facts or the law wrong, I shall point that out to be the case, and explain why the court is wrong. And by the same token, where a court gets things right, I shall point that out, too. Those who are outcome-oriented, and inclined to agree with any decision (regardless how poorly reasoned) that allows them to carve another notch into their gunstock, will receive no comfort here.

De facto victories in the trial courts are nothing to celebrate if they cannot bear up under legal analysis. All of us suffer when a court fails to follow the law. For too long now, the Episcopal Church (USA) has been twisting the facts of its formation, and avoiding confrontations over those facts by moving for summary judgment with hand-tailored affidavits (declarations). It claims the facts are in its favor, when they are not. It argues that there is an abstract entity, called "the Church", which exists in the hierarchical sky over each and every member diocese and parish. Some courts see through the flimflam, but many are taken in by it.

Unfortunately, the decision of the Hon. Michael Karpf is an instance of the latter category. What is worse, it not only gets the facts wrong, but it also misreads the law as well. In doing so, it only adds to the terrible muck that ECUSA is making of property law across the country. Some respond to ECUSA's maneuvers by saying, "Just let it have its way; it's too big to fight, and you can't win." I am unable to live with that. I make my living from the law, and I cannot understand the thinking of those who try to undermine it to gain a temporary advantage. ECUSA's win is the law's loss, because ECUSA is allowed to act as though it is above the law -- it doesn't have to bother with deeds or declarations of trust, as does everyone else. Accordingly, let us proceed to one more example of how to get it all wrong by listening to ECUSA's attorneys and experts.

The trial court's decision begins with a more or less standard recitation of the context in which the Court is called upon to make its decision:

This case is one of a series around the country involving parishes of the Episcopal Church who have sought to disaffiliate because of doctrinal differences. Specifically, the case at bar involves a schism in what is likely the oldest church in the state of Georgia. The division within the church has resulted in one faction taking control of the church property, while the other has sued to regain it. It appears that both sides are passionate about the doctrinal issues, but it is well settled that courts have no business intervening in such disputes. Each side has moved for summary judgment. For the reasons that follow, the court GRANTS plaintiffs’ motion and DENIES defendants’ motion. The facts are not materially in dispute and will be recited briefly.

(Emphasis added.) So the facts are not materially in dispute? Let us view how that observation holds up under detailed analysis. [UPDATE 10/29/2009: A member of Christ Church who was there when it happened writes to point out that Judge Karpf has the facts wrong from the second sentence onward, when he writes of a "schism" in Christ Church and (in the next sentence) a "division within the Church" resulting in two competing "factions". The vote to withdraw by the Vestry of Christ Church was unanimous. The congregation itself later approved the move by an 83% majority of its members; it is not the case that the minority is a "faction" which has the capability of maintaining and operating the Church with a pastoral staff on its own. As the Court later acknowledges, the minority parishioners did not even begin the lawsuit; they were added by intervention later to the suit brought by the Bishop of the Diocese and by ECUSA. Also, the writer says, for the Judge to refer to Christ Church as "likely the oldest church in the state of Georgia" is akin to referring to George Washington as "likely the first President of the United States."]

This is a decision upon a motion for summary judgment, which argues that there are no material facts in dispute, and that the Court may use the undisputed facts as the basis for rendering judgment as a matter of law. On the other hand, if the Court were to find that there were any material facts which were disputed, it could not grant summary judgment, but would be required to submit the case to a jury, or to a judge sitting without a jury, to find which of the disputed fact versions is operative for the case.

Apart from its mischaracterization of the parties as "factions", rather than as "the overwhelming majority" and "the minority", the opinion begins with a relatively neutral expression of the actual issue before the Court:

The competing factions seek to control the property of Christ Church, located on Johnson Square in downtown Savannah. Plaintiffs are the Episcopal Church [the National Church], the Diocese of Georgia and the local group which remained loyal to the National Church and the Diocese. The local plaintiffs, who were added by petition to intervene, formed a new vestry, changed their name slightly and began holding services elsewhere, but continued to press their claim to the disputed property. Defendants are the group which has disassociated itself from the National Church and Diocese, and who retain control of church property. At issue before the court is whether church property is impressed with a trust in favor of the National Church and Diocese. If so, then plaintiffs are entitled to control the property. If not, then defendants will continue their dominion over it.

(Emphasis added.) This is a fair statement of the central issue with which the Court is presented. Is there a trust on the parish property which can be enforced by the Diocese and the "National Church" -- whatever that entity may prove to be?

And now let us recall certain universal legal propositions in the Anglo-Saxon world, at least, about how trusts in real property may be validly created. The first requisite for such a valid trust is that there be a written document signed by the owner of the property, which establishes the trust in question. The basic principle here is that no one may create a trust interest in their favor, and in your property, without your written consent to its creation. (This is called historically, for reasons that may be obvious, the "Statute of Frauds." It has been adopted in each and every one of the fifty States. It was the basis for the recent rejection by the Supreme Court of South Carolina of ECUSA's and the Diocese's claim to have a trust in their favor in a parish's property for which there was no written evidence.)

The court now delves into the history of the parish of Christ Church in Savannah:

Christ Church was founded in 1733, shortly after the arrival of General Oglethorpe and the original colonists. The church was formally organized in 1758 by act of the colonial government of Georgia. At the time of its founding, the church was a constituent of the Church of England. After the Revolutionary War, affiliation with the English church was no longer possible in the newly formed country.

So far, so good. But now watch the Court deliberately prepare the result upon which it has decided, by slanting the facts which it claims are "undisputed" (I have put in bold the words where the court begins to stray from the actual evidence, in order to buttress its prejudged result):

The National Church then began to organize in 1789 as a hierarchical institution. The church organization has three tiers – the National Church, the dioceses and the local parishes or missions.

Oh dear, oh dear. No one who is familiar with the actual facts of the initial formation of "the National Church" could possibly conclude that it "began to organize in 1789 as a hierarchical institution." The Protestant Episcopal Church in the United States of America without question began in 1789 as a confederation of independent and autonomous State churches (referred to as "Dioceses", whose boundaries were coterminous with the States [former colonies] in which they had their existence up to that point), and not as any sort of "hierarchy". The very idea of a national hierarchy was anathema to Bishop William White, the person who did the most to bring about the "national Church". There was no sentiment in any State Church at that time to form any kind of "national hierarchy". Instead, here is what Bishop White proposed, and what PECUSA's founders agreed upon as a governing principle at the very outset of its formation:

VI. That no Powers be delegated to a general ecclesiastical Government, except such as cannot conveniently be exercised by the Clergy and Vestries in their respective Congregations.

This is so well-documented a fact (see other posts here and here and here) as to be beyond dispute, unless you are a well-paid sham masquerading as an historian who reinvents the truth upon request. In sum, there was in 1789, and there is now, no "national Church" in the sense for which the plaintiffs argued, and which the trial court appears unhesitatingly to have accepted.

Indeed, just what is this "National Church" at the top of the imaginary three tiers which the court perceives? Is it a church, and does it have a place of worship where it meets every Sunday? Then why call it a "church", when what you mean is a "denomination"?

Very well -- let's call it a denomination. Of what, precisely, does this denomination consist? There are some 7,000 parishes which make it up, to be sure, and they are organized into ~~111~~ 105 dioceses at the present time. But which parish, or which diocese, is at the top of the "hierarchy"? We all know that the Pope is at the top of the Roman Catholic Church, and in case we didn't the Canons spell it out precisely for us:

Art. 1.

THE ROMAN PONTIFF

Can. 331 The bishop of the Roman Church, in whom continues the office given by the Lord uniquely to Peter, the first of the Apostles, and to be transmitted to his successors, is the head of the college of bishops, the Vicar of Christ, and the pastor of the universal Church on earth. By virtue of his office he possesses supreme, full, immediate, and universal ordinary power in the Church, which he is always able to exercise freely.

Can. 333 §1. By virtue of his office, the Roman Pontiff not only possesses power over the universal Church but also obtains the primacy of ordinary power over all particular churches and groups of them. . . .

§3. No appeal or recourse is permitted against a sentence or decree of the Roman Pontiff.

Is there anything even remotely akin to this in ECUSA's Constitution or Canons? How does the language "There shall be a General Convention . . ." amount to a statement that it is the supreme and highest body of "the Church"? Or does the court mean to say that it considers General Convention to be the denomination which it is calling the "national Church"?

General Convention is no denomination, but is merely a legislative assembly, through which the 105 dioceses can act in concert. Does that mean that General Convention is all-powerful, and at the top of the "hierarchy"? Hardly -- it is difficult to operate a hierarchy when you exist for just two weeks out of every three years, and when there is no language conferring hierarchical status upon you. Consider the reception which GC 2006's Resolution B 033 received in the various dioceses which are supposed to be "subordinate": a number of Dioceses declared they would ignore it. That's some hierarchy.

The court tries to document its conclusion:

The National Church has a constitution and canons, which are similar to bylaws. The dioceses also have constitutions and canons, but these are subordinate to the National Church. The individual parishes are controlled by the terms of their charters and bylaws, which are in turn subordinate to both the diocese and the National Church. In addition, the dioceses and parishes are subject to the doctrine, discipline and worship of the National Church generally.

This would be comical if there were not so much at stake in the court's getting things right. Where is the language -- the specific words -- which make diocesan constitutions and canons "subordinate" to the national constitution and canons? And just what language makes a diocese -- or even an individual parish -- subject to the "doctrine, discipline and worship of the National Church"? Does the court mean to say that my little parish can be deposed if it allows people who are not baptized or confirmed to take communion? (Oh, yes -- Canon I.17.7 ["No unbaptized person shall be eligible to receive Holy Communion in this church"] is most certainly binding on every diocese and parish in the "National Church". That's why "open communion" is completely unknown in ECUSA -- because everyone, and every parish, is subordinate to its Canons -- don't you see?)

From here, the decision proceeds downhill quickly to its conclusion. Along the way, the court is persuaded that the Dennis Canon enacted in 1979 "merely codified in explicit terms a trust relationship that has been implicit in the relationship between local parishes and dioceses since the founding of PECUSA in 1789." The problem with that claim is twofold: in the first place, as an unincorporated association at common law, PECUSA was incapable of holding any interest in real property, whether in trust or in fee; and in the second place, the early history of PECUSA and its parishes proves exactly the opposite.

Consider, just for one such instance, the history of King's Chapel in Boston. As its name indicates, it was originally founded in 1686 as a colonial parish of the Church of England, and was the first such parish in all of New England. Its current building was begun in 1749, and opened for worship in 1754. During the Revolutionary War its loyalist clergy and parishioners fled to Canada, and the church was unused for several years. In 1782, however, the church opened under the leadership of a young graduate from Harvard, James Freeman. As a Unitarian, he revised the Book of Common Prayer radically to suit the principles he espoused, and the congregation approved his changes.

However, there was no bishop in Massachusetts to ordain him, and so Freeman applied to the newly consecrated Bishop William White of Pennsylvania for assistance in becoming an ordained minister. Bishop White had heard about the changes made to the Prayer Book, and asked Freeman to send him a copy. When he saw that the liturgy had been revised to remove every single reference to the Redeemer, he protested that the departure from Anglican tradition was simply too great for the church to remain in communion with the nascent PECUSA: "The invoking of the Redeemer has been too conspicuous a part of our services to be set aside by some of us, consistently with any reasonable expectation of continuing of the same communion with the rest." He also noted that the changes had been approved by a simple vote of the congregation, instead of receiving the imprimatur from a bishop of the church, or ecclesiastical council. This action "was inconsistent with the whole tenor of the ecclesiastical government of the Church of England", he wrote. To leave each church to its own congregational government "would be foreign to every idea of Episcopal government."

Bishop White declared that King's Chapel could not claim to be Episcopal if it adopted Unitarian doctrines and a congregational polity. He delivered an ultimatum: the congregation must return to the Book of Common Prayer as it had received it, or leave and start its new church somewhere else. In essence, he repeated the mantra of the current head of ECUSA: "Go if you must, but leave the keys, since the property is ours."

Freeman and his congregation ignored Bishop White's ultimatum, and Bishop White acknowledged that it had moral force only: he had no legal basis to assert ownership for the Church in any court of law. After also being turned down for ordination by Bishop Seabury of Connecticut, Freeman was "ordained by the Senior Warden of King's Chapel, in the name of the congregation, in words still used in ordinations at King's Chapel today: 'to be the Rector, Minister, Priest, Pastor, Public Teacher and Teaching Elder.'"

However, according to ECUSA's expert Dr. Mullin, and the findings made by Judge Karpf based on his declaration, what happened with King's Chapel simply could not have happened. All Anglican church properties were, you see, held "in an implied trust" for the "National Church" following the Revolution. Isn't it annoying when your theory simply will not fit in with the actual historical facts?

The same "implied trust" doctrine was of no avail to PECUSA when the Rev. Dr. Charles Cheney, of Christ Church in Chicago, left with his congregation in 1871 to affiliate with the Reformed Episcopal Church, which had ordained him as a bishop. The Diocese of Illinois first deposed him, and then brought suit in the name of three former parishioners to regain possession of the church property. In its 1879 decision, Calkins v. Cheney, the Illinois Supreme Court held that the property belonged to the parish, which held the deed. The courts of Illinois could determine questions of title only by looking to matters of public record, said the Court, and not to any implied trust arising out of a religious polity.

The entire implied trust doctrine was declared unconstitutional by the Supreme Court of the United States in 1969, as I have explained in this previous post. Judge Karpf shows his failure to understand this point of law when he writes:

Defendants’ reliance on Presbyterian Church v. Eastern Heights Presbyterian Church, 225 Ga. 259 (1969), for the proposition that implied trusts over all church property have been abolished, is misplaced. First, that case was decided prior to Jones v. Wolf, 443 U.S. 595 (1979), which distinguished and explained it.

Not only was that case decided before Jones v. Wolf, Judge Karpf -- it was the Georgia Supreme Court's holding on remand after it had been reversed by the U.S. Supreme Court! It was the predecessor to that decision, with the same title but appearing in Volume 224 of the Georgia Reports at page 61 (159 S.E.2d 690), which had held -- just as Judge Karpf does -- that the parish property was subject to an implied trust in favor of the national denomination. On appeal to the United States Supreme Court (under the name Presbyterian Church v. Hull Church [1969] 393 U.S. 440), that court reversed the Georgia decision and stated unequivocally (393 U.S. at 450; emphasis added):

Since the Georgia courts on remand may undertake to determine whether petitioner is entitled to relief on its cross-claims, we find it appropriate to remark that the departure-from-doctrine element of Georgia's implied trust theory can play no role in any future judicial proceedings.

Why, then, does Judge Karpf think that some vestige of the implied trust doctrine can remain, so long as it is not based on any determinations of "departure-from-doctrine"? His explanation of Georgia cases post-Jones does not adequately account for their actual holdings. Listen first to what Judge Karpf says:

Second, subsequent Georgia cases have also noted that the prohibition in Presbyterian Church was to an implied trust theory based on a departure from doctrine, where a court would have to decide the ecclesiastical issue, i.e., did the larger church depart from the tenets of faith such as would defeat the implied trust. See Carnes v. Smith, supra; Coles v. Wilburn, 241 Ga. 322 (1978); Crocker v. Stevens, 210 Ga. App. 231 (1993), disapproved on other grounds, Kim v. Lim, 254 Ga. App. 627 (2002). No such issue is presented in the case at bar.

Let us examine more closely what Judge Karpf appears to be saying with this argument. He first acknowledges that the implied trust doctrine was ruled unconstitutional by both the Georgia and the United States Supreme Courts. Then, however, he explains that his reading of the cases teaches him that only implied trusts which were based on determinations of which faction in a church remained truer to the original tenets of the faith were declared unconstitutional. The clear implication is that other rationales for imposing an implied trust remained intact -- but is this reading of the cases correct?

Now look at how the United States Supreme Court in Jones v. Wolf read what happened in Georgia following the Hull Church reversal -- in contrast to Judge Karpf's reading (I have added the bold for emphasis):

On remand, the Georgia Supreme Court concluded that, without the departure-from-doctrine element, the implied trust theory would have to be abandoned in its entirety. Presbyterian Church v. Eastern Heights Church, 225 Ga. 259, 167 S. E. 2d 658 (1969) (Presbyterian Church II). In its place, the court adopted what is now known as the "neutral principles of law" method for resolving church property disputes. The court examined the deeds to the properties, the state statutes dealing with implied trusts, Ga. Code 108-106, 108-107 (1978), and the Book of Church Order to determine whether there was any basis for a trust in favor of the general church. Finding nothing that would give rise to a trust in any of these documents, the court awarded the property on the basis of legal title, which was in the local church, or in the names of trustees for the local church. 225 Ga., at 261, 167 S. E. 2d, at 660. Review was again sought in this Court, but was denied. 396 U.S. 1041 (1970).
The neutral-principles analysis was further refined by the Georgia Supreme Court in Carnes v. Smith, 236 Ga. 30, 222 S. E. 2d 322, cert. denied, 429 U.S. 868 (1976). That case concerned a property dispute between The United Methodist Church and a local congregation that had withdrawn from that church. As in Presbyterian Church II, the court found no basis for a trust in favor of the general church in the deeds, the corporate charter, or the state statutes dealing with implied trusts. The court observed, however, that the constitution of The United Methodist Church, its Book of Discipline, contained an express trust provision in favor of the general church. [Footnote omitted.] On this basis, the church property was awarded to the denominational church. 236 Ga., at 39, 222 S. E. 2d, at 328. . .

None of this sounds as though there was any authority granted by either the United States Supreme Court or the Georgia Supreme Court to continue to resolve title questions on any kind of implied trust doctrine -- as the former observed, the latter ordered that the doctrine "be abandoned in its entirety", and not just as to its departure-from-doctrine aspect. If a court has to look into a church's history and polity to determine that there was always an implied trust relationship between parishes and the denomination, it will be engaging in the same unconstitutional evaluation and weighing of religious language and doctrines as it did in deciding whether there had been a "departure from doctrine." Any such implied trust, if it can be created only out of a subordinate religious relationship and not from any objective words of trust written on paper, is purely a creation of religious doctrine and polity -- which the Hull decision says "can play no role in any future judicial proceedings."

Thus Judge Karpf pays lip service to deciding the current case on "neutral principles", but by resurrecting the implied trust doctrine forty years after it was laid to rest, he has thrown out neutral principles and reverted to the law as it was pre-Hull Church.

Judge Karpf also misreads two Georgia statutes which appear to codify the implied trust doctrine by declaring the existence of an express trust with regard to certain conveyances of land to churches. The precise language of the statutes cannot be applied to Christ Church, because it did not receive its land by "deeds of conveyance" -- it received a land grant from the colonial legislature. Watch how Judge Karpf tries to blur the clear language of the statutes:

At the time Christ Church was incorporated and the Legislature confirmed its land grant, it was a congregational church, unaffiliated with either the Diocese or the National Church. When the church joined the hierarchy in 1823, the two code sections had been promulgated eighteen years earlier. By taking the steps to affiliate itself with the larger church body, Christ Church made itself subject to the code sections. Even though the first part of OCGA § 14-5-46 did not change the status of the church’s title to its property, which was already valid by the earlier act of the Legislature, the second sentence became applicable.

This is bootstrap reasoning, and not legitimate legal argument at all. "By taking steps to affiliate with the larger church body", just how did Christ Church "make itself subject" to two laws dealing with deeds to churches? Judge Karpf claims that the parish's joining the Diocese made the "second sentence" of the statute applicable to it, even though the first sentence did not apply to its land. How can that be? And what does this second sentence of the statute in question say, in order to accomplish this magical feat? Take a look:

All lots of land so conveyed shall be fully and absolutely vested in such church or religious society or in their respective trustees for the uses and purposes expressed in the deed to be held by them or their trustees for their use by succession, according to the mode of church government or rules of discipline exercised by such churches or religious societies.

In his opinion, Judge Karpf places the entire sentence in italics for emphasis. I have changed his emphasis to highlight the two little words he appears to have missed. This sentence spells out how the land "so conveyed" to a church shall be held and used: the reference "so conveyed" takes us right back to the first sentence, which Judge Karpf admitted did not apply to Christ Church, or modify the terms on which it held its property. Thus if the first sentence did not apply to Christ Church when it joined the Diocese of Georgia, nothing in the second sentence could have applied to it, either. The second sentence is completely dependent on the first.

Judge Karpf's reference to a second statute is just as ineffective, because it, too, refers back to the statute just quoted -- which cannot apply to Christ Church. It reads:

All trustees to whom conveyances are or shall be executed, for the purposes expressed in Code Section 14-5-46, shall be subject to the authority of the church or religious society for which they hold the same in trust . . .

This statute does not apply to Christ Church for another reason: it applies only to conveyances (and Christ Church did not, as Judge Karpf acknowledges, receive its land by conveyance) executed after the statute's effective date --"which are or shall be executed . . ." Christ Church was granted its land well before the enactment of the statute. Thus Judge Karpf is just wrong when he concludes that the two statutes support the existence of the trust supposedly created by the Dennis Canon. They simply do not apply to the situation of Christ Church.

There is much, much more in the decision that is wrongly reasoned, and wrongly decided, but it would be too tedious to work through all the details. One more example shall have to suffice. Towards the end of his opinion, Judge Karpf deals summarily with Christ Church's argument that the Diocese of Georgia's own canons insulate its property from the trust of the Dennis Canon:

Defendants’ reliance on Canon II.8 of the Diocese of Georgia is misplaced. The canon does state that “[n]othing in these Canons shall prejudice the legal rights of any Parish or Vestry already existing by act of incorporation.” However, diocesan canons are subordinate to the canons of the National Church.¹³ To the extent that II.8 and the Dennis Canon conflict, the Dennis Canon would control.

And what is the source for this blanket assertion that "diocesan canons are subordinate to the canons of the National Church"? Footnote 13 spells it out: "The Episcopal Church Const. art. V, § 1; Mullin Aff. ¶ ¶ 15 and 22." I have enough familiarity with Dr. Mullin's declarations to know that he simply asserts they are subordinate, without any reference to language making them so. But the reference to Article V, § 1 of the Constitution utterly fails to convince. That section says only that as a condition of joining the Church, the Diocese of Georgia had to accede to the Church's Constitution and Canons back then. As I have already noted, Dioceses routinely refuse to comply with or give effect to canons with which they disagree -- many allow open communion, and still more allow same-sex marriages in defiance of the Book of Common Prayer (whose authority is superior to that of the Canons).

Moreover, even if the national canons would have to be read in conjunction with diocesan ones, there is no conflict between the Dennis Canon and Georgia's Canon II.8. The former purports to make the Church and the Diocese the beneficiaries of a trust in the parish's property. But as we already know, ECUSA is a common-law association which is incapable of holding any interest in property, so the trust interest supposedly created for it is of no effect. That leaves the Diocese of Georgia, which as a beneficiary is perfectly capable of waiving its right to the trust -- and it appears to have done so with its Canon II.8, as to properties held by parish corporations before the date of its enactment. It agreed not to prejudice those pre-existing rights, and the Dennis Canon constitutes an extreme prejudice to those rights.

Enough said. Judge Karpf's decision is too full of mistakes to stand on appeal. One might be hopeful about the Supreme Court of Georgia's reluctance to touch any "implied trust" argument with a ten-foot pole after having two of its earlier decisions taken up by the United States Supreme Court. The first was reversed outright (Hull Church), and in the second one, the Court said: "You almost got it right this time with your neutral principles approach, but . . ." If the Georgia Supreme Court sticks to true neutral principles, stays away from the two inapplicable statutes relied upon by ECUSA, and reads Canon II.8 as a waiver of imposing the Dennis Canon on pre-existing parish corporations, then Christ Church might just keep its property. Only time will tell.

History Repeats Itself: the First Church Property Suit

ashaley@nccn.net (A. S. Haley) — Tue, 27 Oct 2009 15:47:00 +0000

Eusebius, the great historian of the early Church, recounts in one passage what has to be one of the earliest lawsuits over Church property. The setting is the center of early Christianity, the city of Antioch in Syria, where followers first called themselves Christians. It was the third largest city in the Roman Empire, and by the third century had become the seat of a patriarchate founded by St. Peter himself, before he went to Rome.

By the third century as well, the Roman Empire was in an advanced state of decline from its days of glory during the reign of Augustus, while Jesus was still a young man. In 235 A.D. Roman soldiers murdered their emperor, Alexander Severus. Shortly afterwards, the Romans were defeated in a campaign against the Sassanid Empire to the east. Following its defeat, the Roman army broke up into quarreling factions, each led by a general vying for power. In 260, one such general who had clawed his way to the top, the Emperor Valerian, was actually captured by the Goths after his defeat at the Battle of Edessa. As the towns and villages at the borders of the Empire were being ransacked by invading barbarians, and Rome remained unable to coordinate a defense, the western provinces of Britain, Gaul and Hispania broke off, to form the Gallic Empire.

In the East, the governor Septimus Odaenathus, who had been bestowed the title of King of Palmyra by Valerian's son, Gallienus, had a very powerful and influential wife, Zenobia. When Septimus, at her urging, was on the point of also breaking away from the greatly weakened Roman Empire, his nephew assassinated him in revenge for having been briefly incarcerated. Zenobia immediately had her infant son Vaballathus crowned King of what now became the Palmyrene Empire, but she was the actual ruler behind the throne. Without any opposition from Rome, her legions conquered Egypt, Syria, Palestine, Lebanon and Asia Minor.

In the city of Samosata, in what is now eastern Turkey (present-day Samsat, now surrounded by an artificial lake created by the Atatürk Dam), a major settlement on the banks of the upper Euphrates River which in the previous century had been the home of the Greek satirist Lucian, there was born in A.D. 200 a certain Paul, about whom we know little until he was made Bishop of Antioch in 260. Since as Bishop he remained known as "Paul of Samosata", he was probably active in the church for some years earlier. What little we know of him today is not flattering, however, and comes largely from a letter written to the bishops of Rome and Alexandria by the synod at Antioch in 269, when its members voted to depose Paul. This letter is quoted by Eusebius (Book VII, ch. 30), and you can read it online. At issue was a heresy which Paul preached, an early version of Adoptionism known as Monarchianism. The Catholic Encyclopedia describes Paul's doctrine as follows:

We can gather these points: the Father, Son, and Holy Ghost are but a single Person (prosopon). The Son or Logos is without hypostasis, being merely the wisdom and science of God, which is in Him as reason is in a man. Before all worlds He was born as Son (Logos prophorikos) without a virgin; he is without shape and cannot be made visible to men. He worked in the Prophets, especially in Moses (let us remember that Zenobia was a Jewess, and that this monarchianism may have been intended to please her), and in a far higher way in the Son of David who was born by the Holy Ghost of a Virgin. The Christ, the Saviour, is essentially a man, but the Holy Ghost inspired Him from above. The Father and the Son are one God, whereas Christ is from the earth with a personality of his own. Thus there are two Persons in Christ. . . . Mary did not bring forth the Word, for she did not exist before the worlds, but a man like to us. Paul [of Samosata] denied the inference that there are two Sons.

How could he deny that he was not describing two separate persons as one and the same Christ? Because he posited a mystical union of the divine personality with that of the human:

Union of two Persons is possible only by agreement of will, issuing in unity of action, and originating by love. By this kind of union Christ had merit; He could have had none had the union been by nature. By the unchangeableness of His will He is like God, and was united to Him by remaining pure from sin. By striving and suffering He conquered the sin of our first parent, and was joined to God, being one with Him in intention and action. God worked in Him to do miracles in order to prove Him the Redeemer and Saviour of the race. . . . The baptism of Christ, as usual, was regarded by Paul as a step in His junction with the Logos. If He had been God by nature, Paul argued, there would be two Gods. He forbade hymns to Christ, and openly attacked the older (Alexandrian) interpretations of Scripture.

The synod of bishops which gathered at Antioch had to meet several times to deal with Paul and his teachings, because at first he backed down when confronted, and promised to mend his ways. Eusebius quotes the letter they wrote after finally voting to depose him in 269:

“We sent for and called many of the bishops from a distance to relieve us from this deadly doctrine; as Dionysius of Alexandria and Firmilianus of Cappadocia, those blessed men. The first of these not considering the author of this delusion worthy to be addressed, sent a letter to Antioch, not written to him, but to the entire parish . . . .

4. But Firmilianus came twice and condemned his innovations, as we who were present know and testify, and many others understand. But as he promised to change his opinions, he believed him and hoped that without any reproach to the Word what was necessary would be done. So he delayed the matter, being deceived by him who denied even his own God and Lord, and had not kept the faith which he formerly held.

Eusebius then quotes a passage in which the Antioch Christians describe the manner of life which Paul of Samosata led:

7. “Whereas he has departed from the rule of faith, and has turned aside after base and spurious teachings, it is not necessary,—since he is without,—that we should pass judgment upon his practices: as for instance in that although formerly destitute and poor, and having received no wealth from his fathers, nor made anything by trade or business, he now possesses abundant wealth through his iniquities and sacrilegious acts, and through those things which he extorts from the brethren, depriving the injured of their rights and promising to assist them for reward, yet deceiving them, and plundering those who in their trouble are ready to give that they may obtain reconciliation with their oppressors, ‘supposing that gain is godliness’ [1 Tim. vi. 5] ;—

8. or in that he is haughty, and is puffed up, and assumes worldly dignities, preferring to be called ducenarius, rather than bishop [Paul was the “Procurator Ducenarius” of Zenobia, the queen of Palmyra, an official so-called because his salary was 200 sestertia -- we know from Athanasius that he was a great favorite with Zenobia, and that to her he owed the privilege of retaining his bishopric after the synod had deposed him]; and struts in the market-places, reading letters and reciting them as he walks in public, attended by a body-guard, with a multitude preceding and following him, so that the faith is envied and hated on account of his pride and haughtiness of heart;—

9. or in that he practices chicanery in ecclesiastical assemblies, contrives to glorify himself, and deceive with appearances, and astonish the minds of the simple, preparing for himself a tribunal and lofty throne, —not like a disciple of Christ,—and possessing a ‘secretum’ [the name of the place where the civil magistrates and higher judges sat to decide cases, raised and enclosed with railings and curtains in order to separate it from the people; in the present case it means a sort of cabinet which Paul had at the side of the tribunal he had built, in which he could hold private conferences], —like the rulers of the world,— and so calling it, and striking his thigh with his hand, and stamping on the tribunal with his feet;—or in that he rebukes and insults those who do not applaud, and shake their handkerchiefs as in the theaters, and shout and leap about like the men and women that are stationed around him, and hear him in this unbecoming manner, but who listen reverently and orderly as in the house of God;—or in that he violently and coarsely assails in public the expounders of the Word that have departed this life, and magnifies himself, not as a bishop, but as a sophist and juggler,

10. and stops the psalms to our Lord Jesus Christ, as being the modern productions of modern men, and trains women to sing psalms to himself in the midst of the church on the great day of the passover, which any one might shudder to hear, and persuades the bishops and presbyters of the neighboring districts and cities who fawn upon him, to advance the same ideas in their discourses to the people.

Are you beginning to get the measure of the man? Quoting the letter, Eusebius adds even more damning detail (I will wager you had not heard of "subintroductæ" before):

11. For to anticipate something of what we shall presently write, he is unwilling to acknowledge that the Son of God has come down from heaven. And this is not a mere assertion, but it is abundantly proved from the records which we have sent you; and not least where he says ‘Jesus Christ is from below.’ But those singing to him and extolling him among the people say that their impious teacher has come down an angel from heaven. And he does not forbid such things; but the arrogant man is even present when they are uttered.

12. And there are the women, the ‘subintroductæ,’ as the people of Antioch call them [see also this link, and see Canon III adopted at Nicaea, quoted toward the bottom of the previous link], belonging to him and to the presbyters and deacons that are with him. Although he knows and has convicted these men, yet he connives at this and their other incurable sins, in order that they may be bound to him, and through fear for themselves may not dare to accuse him for his wicked words and deeds. But he has also made them rich; on which account he is loved and admired by those who covet such things.

13. We know, beloved, that the bishop and all the clergy should be an example to the people of all good works. And we are not ignorant how many have fallen or incurred suspicion, through the women whom they have thus brought in. So that even if we should allow that he commits no sinful act, yet he ought to avoid the suspicion which arises from such a thing, lest he scandalize some one, or lead others to imitate him.

14. For how can he reprove or admonish another not to be too familiar with women,—lest he fall, as it is written, —when he has himself sent one away already, and now has two with him, blooming and beautiful, and takes them with him wherever he goes, and at the same time lives in luxury and surfeiting?

15. Because of these things all mourn and lament by themselves; but they so fear his tyranny and power, that they dare not accuse him.

That last paragraph reminds me, somehow, of the situation today in a Church with which I am familiar. Plus ça change, plus c'est la même chose . . .

The editor of Eusebius' text adds a note at this point, as follows:

We get a glimpse here of the relative importance of orthodoxy and morality in the minds of these Fathers. Had Paul been orthodox, they would have asked him to explain his course, and would have endeavored to persuade him to reform his conduct; but since he was a heretic, it was not worth while. It is noticeable that he is not condemned because he is immoral, but because he is heretical. The implication is that he might have been even worse than he was in his morals and yet no decisive steps have been taken against him, had he not deviated from the orthodox faith. The Fathers, in fact, by their letters, put themselves in a sad dilemma. Either Paul was not as wicked as they try to make him out, or else they were shamefully indifferent to the moral character of their bishops, and even of the incumbents of their most prominent sees.

What about the lawsuit over Church property? you ask. I'm getting there; still setting the scene. After the council voted to depose and excommunicate him, Paul of Samosata invoked the protection of Zenobia, and continued to occupy the see in Antioch, and to conduct services as before. The same council of assembled bishops (afraid to let the local Diocese elect a new bishop on its own because they knew the hold which Paul had, through fear of retribution, on the local priests and deacons) themselves appointed a new bishop of Antioch, one Domnus by name. But Paul refused to let Domnus take his position, and retained his possession of the church in Antioch. Because of Zenobia's power, the assembled bishops could do nothing for the time being.

Roman politics were changing in the meantime, however -- a new soldier-emperor had emerged, the Emperor Aurelian. After consolidating his power in Rome, he systematically began reclaiming the parts of the Empire which had left, beginning with driving the Vandals and the Alemanni out of northern Italy, and the Goths out of the Balkans. In A.D. 272 he invaded Asia Minor, and Zenobia's Palmyrene Empire began to crumble. When Aurelian advanced to the gates of her capital, Zenobia tried to flee, and the city surrendered. Zenobia was captured and paraded in golden chains through the streets of Rome. She must have been an impressive woman still, because Aurelian freed her. He granted her a splendid villa in what is now Tivoli, and she became "a prominent philosopher, socialite and Roman matron."

Now to the lawsuit. With the capture of Zenobia, Paul of Samosata lost his protection. As Eusebius briefly recounts, the bishops appealed to the Emperor for assistance in removing him (probably while Aurelian was still in Asia Minor):

18. As Paul had fallen from the episcopate, as well as from the orthodox faith, Domnus, as has been said, became bishop of the church at Antioch.

19. But as Paul refused to surrender the church building, the Emperor Aurelian was petitioned; and he decided the matter most equitably, ordering the building to be given to those to whom the bishops of Italy and of the city of Rome should adjudge it.

This was unusual, to say the least, but it shows the advantages of universal Roman law. Even though Christianity had been a religion persecuted by many previous Emperors, Aurelian stepped into the dispute and in a precursor of what would become known as the "deference" approach, allowed the Church in Italy and Rome to adjudicate the ownership of the Church property at Antioch. Paul was finally removed from the building, and no more is heard of him ever again.

Eusebius adds this further note about Aurelian and the early Church:

20. Such was Aurelian’s treatment of us at that time; but in the course of his reign he changed his mind in regard to us, and was moved by certain advisers to institute a persecution against us. And there was great talk about this on every side.

21. But as he was about to do it, and was, so to speak, in the very act of signing the decrees against us, the divine judgment came upon him and restrained him at the very verge of his undertaking, showing in a manner that all could see clearly, that the rulers of this world can never find an opportunity against the churches of Christ, except the hand that defends them permits it, in divine and heavenly judgment, for the sake of discipline and correction, at such times as it sees best.

The "divine judgment" to which Eusebius refers was the murder of Aurelian by his own officers. Always a stickler for discipline, Aurelian had a secretary who feared the Emperor would find out about a trivial lie he had told. To forestall his punishment, the secretary forged a document under Aurelian's signature which purported to list high-ranking officers whom Aurelian planned to execute. The secretary showed the document to those who were named, and they plotted his murder instead. Over such trifles do the mighty fall!

The "Crisis of the Third Century" resumed with a rash of short-lived emperors. It continued until Diocletian came to power in 284, and set about once again rebuilding the Empire (until his abdication due to poor health in 305). That turned out to be very bad for the Christians in Rome and elsewhere, who had to endure renewed persecution until Constantine finally came to power and made Christianity the official State religion. And that elevation, as we now know, led to the gradual enmeshing of the Church in all manner of temporal affairs.

The first Church property lawsuit does not differ in its outward particulars much from the ones it still fights today. A holdover bishop is deposed, but with his followers retains possession of the church building, and the State is finally asked to intervene to determine the property's true and rightful owner. What has changed are the internal reasons for the bishop's "deposition" in the first place. Paul of Samosata was an energetic heretic, and the early Church could not allow him a base from which to spread his heresy. Today, the Church deposes its bishops for refusing to adopt a heresy, then lays claim to the property of all those it has forced out, and ends up putting it on the market, since it is surplus for which the Church has no other use.

The buildings and property once used to preach "the faith once delivered to the saints" -- meaning the faith as it was first preached in Antioch, long ago -- are left empty. The message goes on being preached, but from a new location. The Church thus demonstrates once again that it is people who make a church, not buildings and pews. And time marches on.

Finally: An Insider Tells off the Legislature

ashaley@nccn.net (A. S. Haley) — Mon, 26 Oct 2009 15:46:00 +0000

This is a unique moment in the annals of political history. California's State Treasurer, Bill Lockyer, who is a former Attorney General and also served as President of the State Senate -- he has been in elective office continually since 1973 -- tells off his fellow Democrats in the California Legislature: "Just stop it! [He is referring to their passing reams of meaningless, "junk" legislation while the State crashes and burns around them.] If you don't fix the California pension system, the State will go bankrupt -- but I don't think there's anyone here who can fix it, because of who elected you [the unions, the lobbyists and the government employees who all benefit from the current system]."

Take a look at this short video excerpt and marvel, because you will never see this or read about it in the mainstream media:

Friday TED Talk: Itay Talgam on Leading without Words

ashaley@nccn.net (A. S. Haley) — Fri, 23 Oct 2009 14:50:00 +0000

This was one of my all-time favorite talks given at the 2009 TED Global Conference. I studied music theory and composition as an undergraduate, and played in my share of orchestras, so this talk was literally music to my ears. Itay Talgam, who is no slouch of a conductor himself, uses rare old footage to illustrate how six master conductors approach and solve the problem of how one brings a 100-piece orchestra together into a performance of stunning effect and beauty, with only non-verbal communication:

You can read more about Itay Talgam here; and you really should watch this talk in its high-res version here to get the most out of the old footage he uses. He has a homepage here, which goes into more depth about his application of conducting techniques to achieving better teamwork in businesses. You can download the talk in that and other formats from this page.

The Bandit Bishop: Presiding Judge, Jury and Executioner

ashaley@nccn.net (A. S. Haley) — Thu, 22 Oct 2009 15:16:00 +0000

It is bad enough that the Episcopal Church (USA) has been saddled with a Presiding Bishop who cannot, and will not, recognize the limitations on her authority imposed by the Constitution and Canons of the Church. (If you have not done so already, please read Mike Watson's outstanding paper on the PB's authority, and her abuses of it, posted at the ACI website.) Now, in the case of Bishop Keith Ackerman, we have crystal-clear proof of the fact that she has arrogated to herself all the functions of the Court for the Trial of a Bishop. (Bishop Bennison was lucky, as it turns out. He was probably the last bishop in ECUSA to receive a full-blown trial by (and appeal to) a court of his peers.)

The proof comes from the Lord High Executioner herself, in the form of a message sent to the House of Bishops by way of a response to the charges raised in this post and all over the Episcopal blogosphere -- but not, apparently, by any members of the House (at least, not openly):

There have been several questions asked regarding Keith Ackerman and acceptance of his renunciation of orders in the Episcopal Church.

Acceptance of Keith Ackerman’s renunciation of orders in The Episcopal Church was the result of consultation with my Council of Advice, and based on his written submission to me describing his intention to function as a bishop in the Diocese of Bolivia, in the Province of the Southern Cone and requesting that he be "transferred" to that church and thus out of the Episcopal Church. It is also based on his public participation in, and signature on a document affirming, the election of Robert Duncan as “archbishop” of ACNA.

Acceptance of his renunciation says nothing about the indelibility of his orders. It does clarify the reality that he is no longer permitted to function as a bishop in The Episcopal Church.

We have been and will be consistent regarding our canons, which clearly state that The Episcopal Church can accept the ministry of a bishop of The Episcopal Church functioning temporarily in another province of the Anglican Communion, when it is clear that that province does not seek to undermine or replace the ministry of this Church. Such temporary duty requires the full and informed consent of the respective ecclesiastical authorities. The ministry of Mark McDonald is an example, but as his position becomes permanent, his loyalty will have to be to the Anglican Church of Canada, rather than The Episcopal Church, and a recognition of his renunciation of orders in this Church will be necessary.

Yours in Christ,

The Most Rev. Katharine Jefferts Schori
Presiding Bishop and Primate

First, note the affirmation (although we did not need it) of the complicity of her Council of Advice in this sorry affair. (I note in passing that the "Council of Advice" currently amounts to an Episcopal version of the Star Chamber, since its current roster is nowhere to be found on the official ECUSA website. All they have is the list of members who served from GC 2006 until GC 2009 -- and even to find that, one has to do a site search, since the usual link to the CCAB page has been replaced.)

Second, note the persistence in her misreading of what Bishop Ackerman told her. She claims that Bishop Ackerman declared in his letter to her "his intention to function as a bishop in the Diocese of Bolivia." Since she stubbornly refuses to make his letter public, we have to judge the objective circumstances in this. What Bishop Ackerman says makes complete sense, in light of the actual facts: he says he explained to her that he had been invited to attend meetings of the House of Bishops of the Southern Cone, where he would not have either voice or vote (see my previous post). In other words, while working in Bolivia he would receive respect for his title as a bishop, but he would not function as a bishop in the Diocese of Bolivia. This distinction utterly escapes our Most Reverend Judge, who simply does not know what it means to function as a bishop of the one, true, catholic and apostolic church -- and that is her first failure in this matter.

The next bit is equally telling: "based on his written submission to me . . . requesting that he be 'transferred' to that church and thus out of the Episcopal Church." The "thus" clause does not follow at all, unless you are acting as Judge and Jury together. Again, since she will not let us see the letters so that we may judge her actions for ourselves, we have to trust Bishop Ackerman here. Bishop Ackerman's diocese of canonical residence, the Diocese of Quincy, had withdrawn from ECUSA, thereby creating a chicken-and-egg problem for him. As a bishop with resigned status, he was subject to the Ecclesiastical Authority of that Diocese -- but just who would that be, canonically speaking? There had been the usual "special convention" called without proper notice or quorum, at which a "Provisional Bishop" hand-picked by Yours Truly had been "approved." Bishop Ackerman was not going to receive any warm welcome there -- they had moved to freeze the Diocese's bank accounts, and thus cut off its ability to pay his health insurance, remember? So he wrote to the Presiding Bishop, asking if he needed a transfer in order to earn some money while carrying on his mission work to the poor in Bolivia.

In retrospect, that action had all the sagacity of Little Red Riding Hood placing her trust in the creature that was dressed up as her grandmother. And note that, just like the big bad wolf, the Presiding Bishop lured him into her trap by promising him, as Bishop Ackerman informs us, that she would, after consultation with her ~~Star Chamber~~ Council of Advice, send him the "appropriate papers."

Now we learn from this latest message that she had no such intention of transferring him at all. Bolivia was not just another diocese in a sister province of the Anglican Communion -- it was the Camp of the Enemy, whose actual bishop, the Rt. Rev. Frank Lyons, was bent on "undermining and replacing the ministry of this Church." (It's funny -- my copy of the Canons is missing that language in the definition of what constitutes "abandonment of communion" or "renunciation of Ministry".) Thus, her verdict had to be "Guilty by association". Never mind that Bishop Ackerman was going there to carry on his work of ministering to the poverty-stricken inhabitants of that Diocese.

So instead of consulting her Star Chamber about what to do with Bishop Ackerman's request, we now know that she sent his letter to them and asked whether she could treat it as a convenient written renunciation of his ordained Ministry, pursuant to Canon III.12.7. And to sugar-coat the pill, she included this damning datum: that Bishop Ackerman had publicly participated in -- and yes, had even dared to sign -- "a document affirming the election of Robert Duncan as 'archbishop' of ACNA."

Oh, we can see the scorn literally dripping off that word "archbishop", which she includes in quotation marks and refuses even to capitalize. So that was Bishop Ackerman's real offense!

But, be careful, now -- we are getting into the realm of "abandonment of the communion of this Church", and to proceed under that Canon would require a messy vote in the House of Bishops itself. There it might prove that Bishop Ackerman's years of humble and godly service to ECUSA still earned him a fair measure of respect among his colleagues, such that they might not play along with such a move. So that maneuver is out.

Back to Square One -- treat his letter as a "renunciation" of his Ministry -- even though it specifically states it is not. But when called upon to justify your treating it as such, throw in that bit about participating in the installation of that d---d "archbishop" -- er, archrival.

So now we have gone from Judge and Jury to Executioner, in one fell swoop. No charges were made to the Title IV Review Committee, or inhibition imposed; no trial before the House of Bishops has taken place; and no resolution to depose was moved and voted on. Judgment and sentence of renunciation has been pronounced without bothering to request the "renouncer" even for a clarification of his intent, because that could muddy the waters.

Katharine Jefferts Schori, you are a disgrace to all who profess and call themselves Christian. The title of "Bandit Bishop" is what most suits. You now stand convicted, yourself, out of your own mouth, of conduct unbecoming a member of the clergy. If the House of Bishops is too spineless to depose you for your abuses of the Canons (how fortunate that you specialized in the study of marine invertebrates), you should accept your own renunciation of the ordained Ministry, and step down.

Canon Law Background of the Pontiff's Proposal

ashaley@nccn.net (A. S. Haley) — Wed, 21 Oct 2009 22:55:00 +0000

We are still some time away, I think, from seeing the actual text of the canonical structure which Pope Benedict XVI proposes to establish in accordance with the Vatican's announcement on October, 20, 2009. Because there is so much speculation on the Web about what it will entail, I thought I would provide some canon law background to inform the debate.

First of all, the announcement speaks of the promulgation of an "Apostolic constitution." Wikipedia proves unusually helpful here. It explains that an Apostolic constitution (Lat. constitutio apostolica) "is the highest level of decree issued by the Pope of the Roman Catholic Church." As such it issues as a papal bull (named for the metal bulla with which such decrees were sealed in times past), with a Latin title and the beginning words (in the case of Benedict XVI): "Benedictus, Episcopus, Servus Servorum Dei . . . ["Benedict, Bishop, Servant of the Servants of God . . ."]. A papal bull, in turn, is a subclass (particular to the Pope) of what are called letters patent, which a government or monarch issues to confer certain rights, status and/or privileges upon a territory, organization or class of people.

So that is what the "Apostolic constitution" will do when it is issued: it will be a formal charter establishing the canonical terms and conditions upon which the "personal ordinariates" which it creates are to come into being and to continue to exist within the Roman Catholic Church. Now as to the personal ordinariates: they are an amalgam of two already existing structures in the canon law of the Church: personal prelatures and military ordinariates.

Personal prelatures were made a feature of the 1983 Code of Canon Law after they were established by Pope Paul VI following a recommendation by the Second Vatican Council. Here are the sections of the Code which deal with them:

TITLE IV.

PERSONAL PRELATURES (Cann. 294 - 297)

Can. 294 After the conferences of bishops involved have been heard, the Apostolic See can erect personal prelatures, which consist of presbyters and deacons of the secular clergy, to promote a suitable distribution of presbyters or to accomplish particular pastoral or missionary works for various regions or for different social groups.

Can. 295 §1. The statutes established by the Apostolic See govern a personal prelature, and a prelate presides over it as the proper ordinary; he has the right to erect a national or international seminary and even to incardinate students and promote them to orders under title of service to the prelature.

§2. The prelate must see to both the spiritual formation and decent support of those whom he has promoted under the above-mentioned title.

Can. 296 Lay persons can dedicate themselves to the apostolic works of a personal prelature by agreements entered into with the prelature. The statutes, however, are to determine suitably the manner of this organic cooperation and the principal duties and rights connected to it.

Can. 297 The statutes likewise are to define the relations of the personal prelature with the local ordinaries in whose particular churches the prelature itself exercises or desires to exercise its pastoral or missionary works, with the previous consent of the diocesan bishop.

As you see, personal prelatures are established by the Holy See "after the conferences of bishops involved have been heard." They have the inherent right to establish seminaries and to "incardinate" their students, i.e., place them under the jurisdiction of the prelate for later ordination and advancement. This will be a feature important to Anglo-Catholics, which is expected to be preserved in the creation of "personal ordinariates."

The only personal prelature to have been established to date is Opus Dei, the organization known (but poorly) to most people through the fiction of Dan Brown. Pope John Paul II created it by publishing the Apostolic constitution Ut sit in 1982 (the organization had been in existence since its formation in Spain in 1928; the Pope's bull elevated it into a personal prefecture). So that you can see what an "Apostolic constitution" looks like, here are the first six numbered paragraphs (and the last introductory paragraph) of the one that erected Opus Dei:

Therefore, We, with the plenitude of Our apostolic power, having accepted the opinion which Our Venerable Brother the Most Eminent and Most Reverend Cardinal Prefect of the Sacred Congregation for Bishops had expressed to Us, and making good, in so far as it is necessary, the consent of those who have, or think they have some competence in this matter, command and desire the following to be put into practice.

I

Opus Dei is erected as a personal Prelature, international in ambition, with the name of the Holy Cross and Opus Dei, or, in abbreviated form, Opus Dei. The Sacerdotal Society of the Holy Cross is erected as a clerical Association intrinsically united to the Prelature.

II

The Prelature is governed by the norms of general law, by those of this Constitution, and by its own Statutes, which receive the name "Code of particular law of Opus Dei".

III

The jurisdiction of the personal Prelature extends to the clergy incardinated in it, and also—only in what refers to the fulfillment of the specific obligations undertaken through the juridical bond, by means of a contract with the Prelature—to the laity who dedicate themselves to the apostolic activities of the Prelature: both clergy and laity are under the authority of the Prelate in carrying out the pastoral task of the Prelature, as established in the preceding article.

IV

The Ordinary of the Prelature Opus Dei is its Prelate, whose election, which has to be carried out as established in general and particular law, has to be confirmed by the Roman Pontiff.

V

The Prelature is under the Sacred Congregation for Bishops, and will also deal directly with the other Congregations or Departments of the Roman Curia, according to the nature of the matter involved.

VI

Through the Sacred Congregation for Bishops, the Prelate will present to the Roman Pontiff, every five years, a report on the state of the Prelature, and on the development of its apostolic work.

Now as to military ordinariates: Wikipedia has a list of the ones that have been established around the world. Though they are designated with respect to particular continents and countries, they do not have a geographical territory as such; in this respect they differ from the canonical definition of a diocese, a territorial prelature, and a territorial abbacy:

Can. 369 A diocese is a portion of the people of God which is entrusted to a bishop for him to shepherd with the cooperation of the presbyterium, so that, adhering to its pastor and gathered by him in the Holy Spirit through the gospel and the Eucharist, it constitutes a particular church in which the one, holy, catholic, and apostolic Church of Christ is truly present and operative.

Can. 370 A territorial prelature or territorial abbacy is a certain portion of the people of God which is defined territorially and whose care, due to special circumstances, is entrusted to some prelate or abbot who governs it as its proper pastor just like a diocesan bishop.

In contrast to these, the military ordinariates are a species of what the Code of Canon Law calls an "apostolic vicariate" or "apostolic prefecture" -- hierarchical structures without a defined territory under the control of an "apostolic vicar" or "prefect":

Can. 371 §1. An apostolic vicariate or apostolic prefecture is a certain portion of the people of God which has not yet been established as a diocese due to special circumstances and which, to be shepherded, is entrusted to an apostolic vicar or apostolic prefect who governs it in the name of the Supreme Pontiff.

The Code goes on to provide for the creation of such structures only by the "supreme authority", i.e., the Pope:

Can. 372 §1. As a rule, a portion of the people of God which constitutes a diocese or other particular church is limited to a definite territory so that it includes all the faithful living in the territory.

§2. Nevertheless, where in the judgment of the supreme authority of the Church it seems advantageous after the conferences of bishops concerned have been heard, particular churches distinguished by the rite of the faithful or some other similar reason can be erected in the same territory.

Can. 373 It is only for the supreme authority to erect particular churches; those legitimately erected possess juridic personality by the law itself.

Can. 374 §1. Every diocese or other particular church is to be divided into distinct parts or parishes.

§2. To foster pastoral care through common action, several neighboring parishes can be joined into special groups, such as vicariates forane [Lat. for "deaneries"].

Thus now you can begin to see how the Vatican has conceived of an amalgam of "personal prelatures" and "apostolic vicariates" to come up with "personal ordinariates." It is important to realize that, contrary to what you may have read in some accounts, there are as yet no personal ordinariates established anywhere in the world; there are only military ordinariates, and they are largely different, since their function is to provide pastoral care to Catholics who find themselves stationed temporarily outside the geographical boundaries of any established Catholic diocese. (Likewise, the Pastoral Provision decreed in 1980 for the United States is completely under the supervision of Catholic diocesans, who are regular members of the Catholic hierarchy.) The military ordinariates also have a hierarchical structure, in which the curates and chaplains report to a higher official, who in turn may report to a bishop or archbishop, but the latter may be very distant geographically.

In contrast, according to the Vatican's announcement, the personal ordinariate has been envisioned as a geographically related entity whose "ordinary" will be in close proximity to those whom he supervises, in much the same manner as current Anglican dioceses are organized. However, because there are already Catholic dioceses which cover the entire geographical territory of, say, England, what the Pope proposes to establish to accommodate Anglicans cannot be dioceses in name, though it appears they will be close to them in structure and appearance.

And that brings up another fascinating question. The Church of England itself is not a single monolithic entity, but is an immensely complex conglomeration of individual parish corporations sole, trusts and other forms of property ownership which go back to the early Middle Ages. If you think American property law is complex, try delving into the many forms by which church property is owned and passed on in England. Parliament has tried from time to time to simplify the holdings through legislation, but no one legislative solution has worked, and the various laws and exceptions have served only to add still more layers of complexity. (At least that is my understanding the last time I looked at the matter, after enactment of the Pastoral Measure Code of Practice in 1983. You can download from that link as much as you would ever want to know about parish property in the Church of England.)

Thus, if Anglo-Catholics depart from the Church of England, there can scarcely be any question of their leaving with the local church property. If they organize as a personal ordinariate in a given English area, they will have to make provision for where they will gather for worship, and for how the salaries of their priests (and of the ordinary) will be paid. It will be like starting an entire church from the ground up. It appears that those are some of the problems which Forward in Faith/UK intends to address when it gathers this weekend -- note the discussion of individual and parish finances in the article.

Doubtless Archbishop Rowan Williams would have welcomed a somewhat slower pace of events. Benedict XVI is 82, however, and given that the Code of Canon Law leaves it all up to him, he is not about to wait for the Church of England (or the Anglican Communion, for that matter) to come to a single mind on issues of ecumenical concern -- especially under the painful sort of leadership with which ++Rowan appears to be most comfortable. It was a brilliant stroke on Benedict's part to decide to let the Anglo-Catholics sort things out for themselves under his papal aegis. Just as the departures of its dioceses and the formation of ACNA have left the Episcopal Church (USA) free to walk the path it has chosen for itself, so the departures of the Anglo-Catholics will leave the Church of England free to walk whatever path its remaining constituents can manage to agree upon.

As I discussed in my previous post, however, the prospects of agreement on any single course seem remote. After the CoE ordains women to the episcopate, the same-sex advocates will be sure to follow. Then what will become of the Anglican Communion and its Resolution 1.10 which ++Rowan has so resolutely protected? By then, as I noted, the Global South and GAFCON will have separated themselves from the rest of the Communion by a Covenant which the liberal majorities in both the CoE and ECUSA will refuse to approve (even if the CoE manages to remain an established church). At that point, we will have two separate Communions, and not a two-track one. [UPDATE 10/21/2009: Or will the Global South consider accepting Rome's invitation as well? The implications of that would be truly staggering for the Anglican Communion.]

Benedict and his canon lawyers have moved ahead of the curve with their proposal, while the Anglican Communion, ECUSA and the remnant CoE will all be behind it. ACNA is where the future will now be for traditional American Anglicans, because only it has the structural and organizational flexibility to adapt to the changing church tectonics. After some time, ACNA may branch off into separate parts, some of whom may (also in time) be able to organize personal ordinariates in order to affiliate with Rome. (Watch what happens over the next five years, for example, in Bishop Iker's diocese.)

No wonder there is so little relish for Benedict's plans shown by 815. Their future lies, if at all, still further from Rome, and perhaps in association with the liberals in the Church of England, as a greatly reduced "Anglican Transatlantic Communion" -- if they manage to stay solvent in the coming financial turmoil. (Now is not the time to be investing in vacant properties for sale.) ECUSA is going to get fully what it wished for when it consecrated the Rt. Rev. V. Gene Robinson.

O Brave New World!

ashaley@nccn.net (A. S. Haley) — Tue, 20 Oct 2009 21:06:00 +0000

Momentous times call for some reflection. The blogosphere is alive with reactions to the announcement from Rome that Pope Benedict XVI has authorized an Apostolic Constitution (a formal canonical framework) which would make accommodation for Anglo-Catholics and their clergy to re-affiliate with the See of Peter. No less disinterested a voice than the Christian Science Monitor hailed it as the "boldest move since [the] Reformation." (What about Mary Baker Eddy's doings, CSM? ;>)

There is no single point of view, it seems to me, which will do justice to this event. One has to put oneself into the different perspectives of the various Christians who will be affected by it, for better or for worse. This requires a little tour through the Christian universe: fasten your seatbelts, ladies and gentlemen. Ready? Then let's be off.

Let's first look at the news from the point of view of those who have been asking and waiting for it the longest: Anglo-Catholics in the UK, particularly those in Forward in Faith UK (founded in 1992). Here was the reaction from their leadership:

It has been the frequently expressed hope and fervent desire of Anglican Catholics to be enabled by some means to enter into full communion with the See of Peter whilst retaining in its integrity every aspect of their Anglican inheritance which is not at variance with the teaching of the Catholic Church.

We rejoice that the Holy Father intends now to set up structures within the Church which respond to this heartfelt longing. Forward in Faith has always been committed to seeking unity in truth and so warmly welcomes these initiatives as a decisive moment in the history of the Catholic Movement in the Church of England. Ut unum sint!

+John Fulham
Geoffrey Kirk

Obviously, then, this should be seen as very good news by the members of FiF/UK, since it brings them closer to their ideal, expressed as follows in their 1994 Agreed Statement on Communion:

We want a Catholic understanding of faith and morals, and the practice of Catholic sacramental discipline to flourish in our Church, for we are convinced that they are essential features in the presentation of the gospel to our nation. Remove these elements and our Church's witness will be greatly impoverished and weakened.

At the same time, the move by the General Synod of the Church of England towards bringing women into the episcopate has been a source of grave concern for these folk. From their Statement, again, we read (with emphasis I have added):

1. The threefold order of bishop, priest and deacon, continued unchanged from the Apostles' time, as the Preface to the Prayer Book Ordinal makes clear, is a sine qua non of Anglicanism. This fact has very largely determined and continues to determine the relationship of the Church of England to other ecclesial bodies. Roman Catholics have denied the claim of the Church of England to have continued those orders, and so have declared them null and void. . . .
2. But the Apostolic Ministry is not an end in itself. It exists to authenticate the teaching and sacraments which it ministers. Within the diocese the bishop is the originator, regulator and guarantor of all ordained ministry. [Every bishop is within his diocese the principal minister, and to him belongs the right...of conducting, ordering, controlling and authorising all services... Canon C18 4.] He is charged to uphold the catholic faith and to ensure the reliability and validity of the teaching given and the sacraments celebrated by his authority. [ ..it appertains to his office to teach and to uphold sound and wholesome doctrine and to banish and drive away all erroneous and strange opinions Canon C18 1.] To this end all those who exercise a pastoral or parochial ministry in a diocese do so by license of its bishop and are said to exercise their function on his behalf [Receive the cure of souls which is both mine and thine] as his vicar or alternate.

3. The ordination of women introduces into this time-honoured pattern of relationships and guarantees, already threatened by unbiblical teaching, a new element of doubt. Not only do many faithful people in every diocese not accept that the Church of England and its General Synod have the ecclesial authority to authorize bishops to make this change, but the bishops themselves have expressed doubt about an action which they have nevertheless taken. . . . Believing as we do that in the administration of the sacraments the Church is always obliged to take the "safest" course, a degree of separation from those whose orders result from this principle of deliberate experiment and declared uncertainty is inevitable. . . .

From the perspective of FiF/UK, then, the Pope's offer solves two problems at once. It allows them a "safe harbor" from the recent advances by the Synod (which received, it is true, somewhat of a setback earlier this month) toward the ordination of women to the episcopate. Faced with the prospect of having to leave the Church of England to maintain what they regard as the true apostolic succession, they now have a place they can go to, without having to fend for themselves.

The second problem the Pope has solved for Anglo-Catholics is the non-recognition by Rome of the validity of Anglican orders (due to an ill-considered -- but by Catholics deemed still infallible -- papal bull issued in 1896, which was thoroughly refuted by the Archbishops of Canterbury and York almost immediately afterward.) Although the Orthodox Church never agreed with the Roman Catholic Church on this point, it has been a sticking point between Rome and Canterbury ever since. Without drawing the infallibility of Pope Leo XIII into question, Pope Benedict XVI has now sliced through the Gordian knot by sanctioning the use of "Personal Ordinariates", non-geographical structures used by the Catholic Church previously to provide Catholic pastoral care to members of the military stationed abroad, for Anglicans. Each Ordinariate will be headed by an (unmarried) bishop or senior priest, appointed (naturally) by the Vatican, who may come from Anglican orders. And that solves that!

Anglican bishops and priests who are currently married will not be able to serve as ordinaries, but they may still be ordained as priests into the Roman Catholic Church, and serve under an ordinary. The geographical boundaries can be drawn very flexibly in relation to the boundaries of existing Catholic dioceses. We will have to await the publication of the Apostolic Constitution (currently under close review by Vatican canon law experts) for further details.

FiF/UK has been in the forefront of those requesting the Vatican for an accommodation like this, and so will probably be the first to respond. But there are a whole range of other Anglo-Catholics, both in the UK and in the United States and elsewhere, and not all of them are as delighted with the Vatican's move. Let's take a quick look at some of them.

Not all of Britain's Anglo-Catholics are conservative (apart from the issue of women's ordination, that is). Quite a few are rather liberal in other respects. In a very prescient article a few months ago, Catholic religion reporter Damian Thompson revealed the ongoing talks between the Vatican and FiF/UK, and in the course of the article made this observation:

It’s widely believed, among conservative Catholics and Anglicans, that the Church in England and Wales did not do enough to welcome refugees from the Church of England after the vote for women priests in 1992. On reflection, though, perhaps the time was not right. The Bishops of England and Wales were not well disposed to “misogynist” traditionalists, as they were unfairly characterised; the standard of English Catholic liturgy was at an all-time low; and Anglo-Catholicism, though divided and unhappy, still had the stomach for a fight.
Now Anglo-Catholicism has fallen apart. Liberal High Churchmen have quietly abandoned their opposition to women priests, ditching their principles but keeping their chasubles; they include most of the practising gay clergy who were such a stumbling block in the 1990s. Conservative Anglo-Catholics, meanwhile, no longer identify with a C of E that treats them like batty aunts to be locked in the attic when the first woman bishop arrives, as she will soon. The question is how best to escape.

Thus some, and perhaps a considerable number, of Anglo-Catholics in the UK may stay in the Church of England, particularly if they already have a good living and a comfortable rectory. (But watch out for the threat of disestablishment, mentioned below.)

As for the United States, reactions among Anglo-Catholics have varied all over the map. Some, such as those in the Traditional Anglican Communion (TAC), are cautiously optimistic; others, like Bishop Jack Iker of the Diocese of Fort Worth, as well as fellow blogger Texanglican whom I link at the right, are much more reserved about the difficulties that remain with Roman doctrines (such as that darned infallibililty). Their reactions may be taken as typical of those Anglo-Catholics currently in ACNA, although it is not yet possible to ascribe a monolithic point of view to that group, which is still in formation. Nevertheless, for the reasons they indicate, I do not see any great numbers pulling out of ACNA any time soon to dance to the Pope's tune. (See also the comments by William Witt and others on this thread.) And still others, such as one of my favorite cerebral Anglo-Catholics, Father Robert Hart, declare unequivocally that the Pope has opened no path for them.

Now let us turn to one of the most fascinating aspects of this story. What does it mean for the Archbishop of Canterbury, the Church of England, and the Anglican Communion itself? Let's start at the center and work our way outward.

The Archbishop of Canterbury seems to have been taken somewhat by surprise by the Vatican's announcement, although he did manage to prepare a joint statement on it with the Catholic Archbishop of Westminster. (You can judge his reaction from the video of the joint press conference reproduced here.) And it is Ruth Gledhill ("Rome Parks Tanks on Rowan's Lawn") who supplies the reason:

One reason this has happened now, and not before, is that it was opposed by Nichols' predecessor Cardinal Cormac Murphy-O'Connor, currently at the English College in Rome. He was worried about the damage such a move would do to Anglican-Catholic relations. He was right to be.

You see, Anglicans and Catholics have been delicately at work forging a potential rapprochement ever since the heady days following Vatican II in the 1960's. Through various initiatives such as ARCIC and IARCCUM, intellectuals from both camps had been genteelly exploring the intricacies of the differences that separated them -- beginning with that nasty disagreement over the validity of Anglican orders. ++Rowan himself had been part of the discussions, and as late as last July, I pointed out how in his "two-tier" statement released after the close of General Convention 2009 he placed an inordinate stress on the difficulties which that body's decisions had caused for ongoing ecumenical relations.

Not only ECUSA's General Convention, but the Church of England's General Synod, as already mentioned, have been creating severe problems for the Archbishop of Canterbury. However, any effect the Vatican's announcement will have on ECUSA itself will be minimal. The statement issued from 815 reflects that reality almost perfectly when it reiterates the Gospel According to the President and Vice President of the Executive Council:

We in the Episcopal Church continue to look to the Holy Spirit, who guides us in understanding of what it means to be the Church in the Anglican Tradition.

I bet you never knew that the Holy Spirit was an Anglican, as well as a traditionalist, did you? ECUSA is already doing a fine job of driving away its members and clergy, as documented in too many posts here to mention, and needs no help from the Vatican. (Contrast to 815's egocentrism the irenic response to the Pope offered by ACNA's Archbishop Duncan.) Many in ECUSA have a real antipathy toward Rome, despite the fact that Bloody Mary's reign was over 450 years ago. (See examples here and here, but see also this response as well.)

[UPDATE 10/21/2009: I see I left out one very important perspective: that of the Catholics themselves! May they all be as sober and enlightened as Brother Stephen, who has some further useful links at the bottom of his post. And check out Derek the Ænglican's other links while you are at it.]

But the Church of England is another matter. Given that its women clergy threatened to leave en masse following the recent change in the draft legislation to enable the ordination of women to the episcopate, the Vatican's recent announcement will, as explained above, probably take the pressure off the legislators to make an accommodation for the Anglo-Catholics. To the extent the conservative Anglo-Catholics now follow Benedict's tune, there will not be enough of a faction left in the Church of England to ensure its protection. The news from Rome virtually guarantees that the CoE will have a woman bishop by 2012 or 2013. Thus it is ironic that by extending a helping hand to the CoE's distressed Anglo-Catholics, the Pope has done what the Church's own leader had not been able to do, which is to make it seemingly possible for the Church to remain a single entity.

But will it remain so? A year ago, in a post about the future of the Anglican Communion, I linked to an article which had some dire predictions for the future Church of England. The news from Rome changes the forecast somewhat, but the article is still worth reading today for its analysis and description of the various factions that make up the CoE, and how they are pulling the center apart. Moreover, as the author explains, the liberal trend in the clergy is at odds with the more conservative inclinations of the parishioners who have up till now filled the few occupied seats Sunday after Sunday. Thus it appears as though the announcement from Rome may only slightly hasten the eventual break-up of the Church of England, for the same ultimate reasons we have been seeing in the breakup of ECUSA. The factors so well analyzed by Bishop Allison are still hard at work in both churches, with consequences that are all too predictable. Ruth Gledhill even raises the spectre of disestablishment in the near future, given the left's anger at ++Rowan for not bowing to secular trends:

I wonder how many will agree with Keith Porteus-Wood of the National Secular Society, who said: 'This is a mortal blow to Anglicanism which will inevitably lead to disestablishment as the Church shrinks yet further and become increasingly irrelevant. Rowan Williams has failed dismally in his ambitions to avoid schism. His refusal to take a principled moral stand against bigotry has left his Church in tatters. Time for him to go.'

With the breakup of ECUSA and the CoE, where will that leave the Anglican Communion? The prospects for Lambeth 2018 are not very bright, I must say. If the Church of England is disestablished, not even the Compass Rose Society will be able to subsidize the cost of that gathering -- even if its invitees are greatly reduced. The other factions which are now more active -- GAFCON and the Global South -- will end up being the stronger survivor, and will be recognizable by the Covenant on which they will all agree. But neither ECUSA nor the Church of England will remain unified enough to want to sign on to any Covenant, let alone one that the Global South will sign. And under the current leadership of ECUSA and the CoE, but for very different reasons in each case, the implementation of a Covenant in those churches is simply impossible.

The move by the Vatican is thus very significant -- hugely significant -- in the overall course of things. But it is simply one shake of the shifting tectonic plates that are now reforming, at geological speed, the picture of Christianity on Earth today. The end picture will look nothing like it did over the last century. There will be the churches that float with the culture, and the churches that stand athwart it. Each will suffer gains and losses according to their ability to maintain their anchor with Jesus Christ.

Ms. Jefferts Schori, Produce the Letters!

ashaley@nccn.net (A. S. Haley) — Tue, 20 Oct 2009 04:47:00 +0000

Concerning the "renunciation of the ordained Ministry of this Church" by the Rt. Rev. Keith Ackerman, resigned diocesan of Quincy, the Presiding Bishop said (emphasis added):

In accordance with Title III, Canon 12, Section 7 of the Canons of the Episcopal Church, and with the advice and consent of the Advisory Council to the Presiding Bishop, I have accepted the renunciation of the Ordained Ministry of this Church, made in writing to me in July 2009 by The Right Rev. Keith L. Ackerman, Bishop of Quincy, Resigned . . .

But Bishop Ackerman says (emphasis again added):

I have not renounced, and in fact, in my first handwritten letter indicated that my intention was not to be seen as either "abandonment of the Communion" or "Renunciation."

The Presiding Bishop of the Episcopal Church wrote to Bishop Ackerman as follows (emphasis added):

Thank you for your follow up note regarding your plans to function as a bishop in the Diocese of Bolivia in the Province of the Southern Cone.

But Bishop Ackerman says (emphasis added):

After two months with no communication, I sent another handwritten, unduplicated letter in early October asking about this matter.

Bishop Ackerman describes his earlier handwritten letter to the Presiding Bishop (the one sent in July 2009 which she says constituted his "renunciation") as follows (emphasis again added):

This letter was handwritten, sharing with the Presiding Bishop my current health, my new ministry with the homeless, my desire to assist another Anglican partner in ministry in Bolivia and, at their invitation, to participate informally (seat but no voice and no vote) in the House of Bishops of the Southern Cone. At no time did I express dissatisfaction with the Episcopal Church, or make any statement of a desire to be separated from it.

The Presiding Bishop, without bothering to call Bishop Ackerman or ask him for any clarification, took the language I have emphasized as his "plans to function as a bishop in the Diocese of Bolivia". Note the difference: sitting by invitation without voice or vote in the House of Bishops of the Province of the Southern Cone is not "functioning as a Bishop in the Diocese of Bolivia." (News reports that speak of a "House of Bishops" for the Diocese of Bolivia make no sense. There is no House of Bishops for a single diocese; the Bishop of Bolivia is a member of the House of Bishops of the Southern Cone.)

The Presiding Bishop wrote to Bishop Ackerman (emphasis added):

As you know, there is no provision for transferring a bishop to another Province.

But Bishop Ackerman says:

At no time did I request transfer to the Southern Cone.

[UPDATE 10/20/2009: Bishop Ackerman has now clarified that he did request a transfer to Bolivia. (See the comment by Father Rob Eaton below.) However, he asked it of the wrong authority (see my response to Father Eaton); and it does not change the wrongful character of his removal from the ordained ministry.]

It is clear that either the Presiding Bishop of the Episcopal Church (USA) or Bishop Ackerman must be lying. The one person who can clear this up is the Presiding Bishop: since Bishop Ackerman says he kept no copies of his handwritten letters, the Presiding Bishop should produce them for everyone to see exactly what they said, and exactly how they constituted a statement of renunciation. An official statement of renunciation is not the same thing as a private letter: it forms a part of Bishop Ackerman's record at ECUSA, and since it was the basis for removing him from his ministry, it should be open for anyone to inspect.

Ronald Reagan famously said: "Mr. Gorbachev, tear down this wall!"

I am not the president of anything, but as members in good standing of the Episcopal Church (USA), any of us can say to the Presiding Bishop: "Ms. Jefferts Schori, produce those letters!"

Will some bishops who do have regular access to the Presiding Bishop please join us in demanding to see the letters?

There is the stuff of a presentment here, if it should be clear from the letters that the Presiding Bishop has lied in order to remove a bishop from the Church. And not just the Presiding Bishop should be charged, but also the two subscribing witnesses, Bishop Mark Beckwith of Newark and Bishop Herbert A. Donovan, Jr., assistant to the Presiding Bishop for Anglican Communion relations, together with all of the twelve bishops on the Council of Advice who concurred in "accepting" Bishop Ackerman's "renunciation."

Make no mistake: there cannot be two versions of the truth here. Bishop Ackerman not only says he did not ask for a transfer, but made clear as well that he would not be functioning officially as a bishop in the Diocese of Bolivia, and did not want anything in his letter to be taken as "abandonment of communion" or as renunciation. Yet the Presiding Bishop and her Council of Advice did exactly the opposite.

Is the Church to be ruled by cabal, or by bishops who are open and accountable to their colleagues, and to the members of the Church who pay their salaries? Watch closely what happens in the coming days. If the Presiding Bishop does not produce the letters, and if no member of the House of Bishops (active or resigned) calls upon her to do so, then the fix is in.

Neva Rae Fox, 815's program officer for public affairs, says that the Presiding Bishop will probably not respond to Bishop Ackerman, or have a statement in response to his remarks. So it is up to all of us to raise the hue and cry:

"Ms. Jefferts Schori, produce the letters!"

[UPDATE 11/05/09: Apparently, Bishop Ackerman does not wish to pursue this matter any further. (See the last two comments below.) While I could never fault him for deciding to keep this matter at a personal level between him and the Presiding Bishop, I am disappointed that we have yet one more instance of where the Most Rev. Katharine Jefferts Schori is able to have her way by default. I take solace (as must he, as well) in the words of Our Lord and Saviour: " . . . turn the other cheek."]

It's Great to Have Reinforcements

ashaley@nccn.net (A. S. Haley) — Mon, 19 Oct 2009 18:17:00 +0000

Please go on over to the website of the Anglican Communion Institute and read the address which Mark McCall gave to the Annual Convention of the Diocese of Dallas last week. Here's an excerpt, and if it sounds familiar to regular readers of this blog, well, all I can say is that great minds think alike:

This leads us to the question, “what are the essential legal characteristics of voluntary associations, the things that distinguish them from other forms of organization”? And the answer is, like Pegasus on top of the Mobil Building, “they’re not what they used to be.” Until fairly recently, the law did not recognize a voluntary association as a legal entity distinct from its members. In other words, when the law looked at a voluntary association, it only saw its members; the association itself was simply an aggregate of its members. That rule was changed in the twentieth century in most, but not all states, typically by statute. Texas, like other states, has a statute that recognizes voluntary associations as legal entities and allows them to own property and sue in their own names and enjoy the rights and responsibilities of legal personality. But that was not formerly the case.

The traditional rule is illustrated by two early U. S. Supreme Court cases related to the Episcopal church, both arising in the same small town in Vermont. About fifty miles north of my house is the beautiful town of Pawlet, Vermont. It is exactly what you think Vermont is like, especially if you think it is overrun by Mercedes and BMWs. Vermont is not what it used to be either! Shortly before the American Revolution, King George III donated a royal grant of land establishing the town of Pawlet. One parcel of land was donated to the Church of England for religious purposes and another was donated to the Society for the Propagation of the Gospel. And in the early years of both the Supreme Court and the Episcopal Church two law cases were filed concerning this single land grant by the king. The first, in 1815, was brought by the local Episcopal parish in Pawlet, which claimed it owned the land given to the Church of England. But the Supreme Court said no. By the time the local parish was formed, the Vermont legislature had already passed legislation transferring these two parcels to the town of Pawlet for eventual use as a school. And the Supreme Court ruled that until the formation of a local parish, which was treated as a corporation under the common law, or incorporation of the Episcopal Church by the state or some other means of establishing a legal personality, no group of Episcopalians legally existed to take ownership of the property from the king. These Episcopalians were “merely a voluntary society,” which could not own property.

The other case was brought by the Society for the Propagation of the Gospel and was decided in 1830 with an opinion by the same justice who had authored the earlier Pawlet case. This case had a completely different outcome. Because the Society was an English corporation and was a recognized legal entity, it took ownership of its parcel when the grant was made by the king. So here we find one Vermont town, one land grant, two Supreme Court cases and two different results depending entirely on the legal form of the entity. We see in these cases one of the significant aspects of the choice by the founders of TEC to organize it as a voluntary association.

We also see from this discussion of the traditional understanding of voluntary associations that the concept of membership is crucial. If it is the members not the association itself that are primary in this form of organization, who the members are becomes paramount. And in this respect, associations come in all types. Some have individuals as members. Other associations have corporations or other entities as their members. You are all familiar with trade associations. Their members typically are large corporations that are themselves more important than the association. Another association you have all heard of, the NCAA, the National Collegiate Athletic Association, is an association of colleges and universities. Some associations are in fact associations of associations. For example, there is an association of trade associations called the Federation of International Trade Associations. So, on the important question of determining the membership of an association, one has to look carefully at the structure of the particular association.
. . .
Next, given that the members of the association are the dioceses and the law says the members can organize themselves however they see fit, how does TEC governance work? The first hint is something I have already said: the founders of TEC chose a form of organization that was not at that time recognizable as a legal entity apart from its members. And we still see that basic concept today when we look at the governing principles in TEC’s constitution. We find there a recognition of several legislative bodies. There is a General Convention, but there are also diocesan conventions. And there are no general limitations placed on the authority of either, although there are some specific limitations on each.

This overlapping jurisdiction—we call it concurrent jurisdiction in the law—is not as odd as it might seem at first glance. The Congress and state legislatures frequently legislate on the same things and many court cases could be filed in either the state court or the federal court. And on a more practical level, this concept of overlapping unlimited authority is familiar to everyone through property law. We probably all have joint bank accounts, and we know that any owner of the account can draw on the entire account.

But in the case of concurrent legislative jurisdiction the question quickly arises as to which legislature has priority. This is a question to which the law gives two answers. The most ancient answer, going back to the Romans if not before, is called the “last in time” rule. The last legislature to speak prevails.

To take only one example here, you may not realize that there are actually two lawmaking bodies in the federal government. One, Congress, you all know. The other is the President acting in international matters with the concurrence of two thirds of the Senate. This kind of law is called a treaty, and the constitution provides that both statutes and treaties are the “law of the land” and gives no priority to either type. Occasionally, a treaty will be inconsistent with a statute and in this case the courts apply the last in time rule. Whichever was later, statute or treaty, prevails.

But another rule of priority developed in the law to change the last in time rule. This is a rule that gives priority to a legislative body based not on temporal sequence, but on identity. And for centuries this priority has been expressed legally in a very precise way, through the language of “supremacy.” The oldest law code now in use, the Code of Canon Law of the Roman Catholic Church, uses this language. One need only look at the Table of Contents to see the chapter entitled “The Hierarchical Constitution of the Church,” section I of which is “The Supreme Authority of the Church.” The first canon in this chapter specifies that the Pope possesses “supreme ordinary power in the Church.”

Not surprisingly, at the time of the English Reformation, when the Church of England broke with Rome, this break was expressed legally in the “Supremacy Act,” which made the British monarch the “supreme governor” of the Church of England. All clergy and government officials had to swear an “oath of supremacy” recognizing the king as the supreme governor. Sir Thomas More lost his head over this oath. It is still required of bishops in the Church of England.

And to take a final example, the reason state legislatures cannot take advantage of the “last in time” rule to overturn or nullify a federal statute is that there is a “Supremacy Clause” in the constitution that makes federal law “the supreme law of the land.” And the reason the state court in Alabama could not overrule the Supreme Court in the NAACP case I cited earlier is that the constitution expressly makes the Supreme Court the supreme court. And the reason there is no priority between Congressional statutes and treaties is that there is no language of supremacy in the constitution giving one priority over the other; they are on a par.

Turning to the TEC constitution, we find that it has no supremacy clause giving General Convention priority over diocesan conventions. There is no language of supremacy or any of its synonyms, such as “highest” or “hierarchical.” The closest the TEC constitution comes to this concept is in the provision making the Bishop and standing committee “the Ecclesiastical Authority” in the diocese. If the bishop is “the” ecclesiastical authority in the diocese, the Presiding Bishop, the General Convention and the Executive Council are not.

Great stuff, Mark! Now let's watch as the leftist blogs try to shoot the messenger, while ignoring the message. And just in case they can't read far enough to get to the main message, I will extract it here for them:

First, TEC polity. And to begin, why do we care what the civil law has to say? The answer to that largely lies in the fact that there are now several civil lawsuits around the country in which courts are addressing TEC polity. This is not the way we want it to be, but it is the way it is. And barring some unexpected negotiated settlement of these lawsuits, the secular courts will have profound things to say about TEC polity that will affect us all. So we have to care.

ECUSA Succumbs to the Second Law

ashaley@nccn.net (A. S. Haley) — Sat, 17 Oct 2009 12:18:00 +0000

Energy flows from hot to cold, and not the other way around. The vast fusion engine of our Sun transforms, every second, seven hundred million tons of hydrogen gas into about 695,000,000 tons of helium and 5,000,000 tons of gamma rays (equal to 3.86 x 10³³ ergs of energy). The radiation travels from the inner core towards the surface, and in the course of its journey is absorbed and re-emitted, each time at a lower temperature. By the time the energy reaches the surface, it has cooled from the level of gamma radiation to visible light. Of this inconceivable outpouring, a mere 1.74 x 10²⁴ ergs -- which is less than one two-billionth (.00000000005) of the sun's total output -- reaches the surface of our earth every second, and provides enough heat and energy for all of life to flourish.

But all that energy is eventually absorbed into our surroundings, never to be regained -- as are the other 1,999,999,999 parts of the whole that do not reach us. This is the famous Second Law of Thermodynamics. Energy (order) in the universe dissipates as entropy (the measure of disorder) increases. The process has never been observed to run the other way, although theoretically there is no physical law to prevent it. (Isaac Asimov in 1956 wrote a marvelous short story about mankind's futile attempts to reverse the process of entropy by constructing ever larger and more complex computers in an effort to analyze and solve the problem. If you have never read it, I won't spoil it for you -- read it here. UPDATE 10/18/2009: Dr. Mabuse at Kraalspace has supplemented this post with a great YouTube video illustrating in verse and song the first and second laws, together with a bonus video about work creating ever more work -- don't miss them.)

Each individual human represents, for most of his or her lifetime, a temporary reversal of the Second Law. Energy is taken into our mass from the moment of conception, and fuels our growth into an adult. It maintains our constant body temperature which is required to keep our brain functioning, and when we are no longer able to take in more energy to sustain us, we die. All of our mass then dissipates back into the world from which we came, as the burial service recognizes: "Ashes to ashes, dust to dust . . ."

In the same way, institutions can for a time defy the Second Law. They accumulate people and energy, and flourish and spread and thrive. Some can maintain their health for centuries, or even millennia. But if the flow of energy out begins to exceed the amount that is taken in, eventually the institution must succumb to the Second Law if the process cannot be reversed.

The Episcopal Church (USA) is no exception to the Law. I submit that all of the outward signs point to a draining from it of people and energy which at the moment is very much greater than what it is managing to attract to itself.

There is no glee to be had here, no Schadenfreude. I am an Episcopalian -- a member of a Church that is in free fall, and whose current leadership is a disgrace, as they say, to the profession. Consider the fifty-year trend in its numbers, as vividly portrayed by Bishop FitzSimons Allison in this brilliant analysis of what that leadership has done wrong -- and continues to do wrong, as borne out by the latest figures. Consider the huge drain on its reserves caused by that leadership's decisions to go to court wherever and whenever they think another parish (or diocese) must be sued for its property.

And last, but by no means least, consider the self-inflicted wounds caused by the Church's deposition of more than 200 of its clergy in just the last eight years -- every one of them unnecessary when simple letters dimissory would have sufficed. Add to this, now, the arrogant and lawless leadership of the Chief Kaitiff (for so I must call her when she acts in this way) -- whose respect for the Church's Canons is as non-existent as is her understanding of them.

I will not rehearse the latest canonical absurdities yet one more time; the Anglican Communion Institute and Dean Munday have both provided the sordid details. What I wish to draw your attention to is the sheer smouldering dudgeon that emanates from the Chief Kaitiff's every public pronouncement attempting to defend the indefensible. Here is her pathetic justification for her gratuitous and offensive decision to treat as a "renunciation of ministry" the notification sent to her as a courtesy by the Right Reverend Keith Ackerman that he would be assisting in the Diocese of Bolivia:

Dear Keith,

Thank you for your follow up note regarding your plans to function as a bishop in the Diocese of Bolivia in the Province of the Southern Cone. As you know, there is no provision for transferring a bishop to another Province. [NB: Bishop Ackerman did not even request a transfer!]

I am therefore releasing you from the obligations of ordained ministry in this Church . . .

Compare that to the equally pathetic display of canonical contumely in the Chief Kaitiff's letter to the Right Reverend Henry Scriven, on the occasion of his return to England to serve under the Bishop of Oxford:

Dear Henry,

. . .
I understand your request to resign as a member of the House of Bishops to mean that you will become a bishop of the Church of England, serving as assistant to the Bishop of Oxford. I will on those grounds, and with the consent of the Council of Advice, release you from your orders in this Church, "for reasons not affecting your moral character." Those words are what the canons require . . .

I sense that you may have some misunderstanding of our canon law, given your comments about Robert Duncan's deposition. That action took place on the grounds that he had repeatedly violated the discipline of this Church. Our ordination vows require us to "conform to the doctrine, discipline, and worship of this Church." Deposition means that he may no longer function as a sacramental representative of The Episcopal Church. We understand orders to be indelible, but that licensing is required to exercise them. I fear that that subtlety is lost on some of our Communion partners.

As I say, this is not ignorance, but contumely. The Chief Kaitiff is presuming not only that she has the authority, but also the obligation, to transform a simple resignation request into a renunciation of Holy Orders. She has neither, and it is a another sign of the Church's increasing entropy that there are twelve other bishops of this Church on her Council of Advice who cannot tell her that. (Bishop Ackerman -- whose health insurance was canceled as a result of ECUSA's managing to freeze the accounts of the Diocese of Quincy -- did not submit a resignation, but had indicated he needed to go back to work in order to pay for insurance, and that he was going to Bolivia just for a while, and still planned to assist in the Diocese of Springfield.)

Does the Chief Kaitiff and her Council of Vice (for that is what they are aiding and abetting) conceive that the Church of England treated Bishop Scriven as renouncing his orders when he came to serve in Pittsburgh? The Church of England did not find it necessary to declare that he was "released from the obligations of all Ministerial offices, and . . . deprived of the right to exercise the gifts and spiritual authority as a Minister of God's Word and Sacraments conferred on him in Ordinations" -- thus why does the Presiding Bishop pretend that ECUSA must do so? (And if orders are truly "indelible" upon deposition, as she admits, then why use a Canon designed for the case when someone truly renounces them [i.e., does not wish to exercise them anywhere else], for the much more routine situation when one wishes to continue to exercise one's ministry, but in another Province of the Communion? Such obtuseness cannot flow from ignorance, especially when one is serving as the presiding officer of the House of Bishops and has a legion of advisors. That is why I say her abuse of the renunciation Canon evinces arrogance -- and high dudgeon.)

The latest edition of The Episcopal Church Annual lists sixteen clergy transferred into ECUSA from other provinces of the Anglican Communion, including England, Kenya, Canada, Korea, the Sudan, the Philippines, Rwanda, Central and West Africa, Mexico and the Southern Cone. Did any of those churches find it necessary to declare that those clergy had thereby renounced their orders? Certainly not -- the very meaning of being "in Communion with" other Churches is that you recognize their orders, and they recognize yours.

The same edition lists another nineteen clergy from ECUSA who were transferred, without being deposed, to other Anglican provinces -- including again to the Southern Cone, as well as to Uganda, Rwanda and Nigeria, among others. No bishops are listed, but then, bishops are not accountable to anyone but their dioceses. If a diocesan bishop wishes to transfer elsewhere, he makes arrangements with his Standing Committee, and if he is resigning his jurisdiction, he submits his resignation to the House of Bishops. (Theoretically, they could refuse to accept it, but what would be the point? The House of Bishops would be powerless to stop the Bishop in question from transferring, because it has no jurisdiction over inter-provincial transfers. And neither does the Chief Kaitiff.)

Diocesan bishops do have power to approve the transfer of clergy (including resigned and inferior bishops under their jurisdiction) to other provinces. They do so by issuing letters dimissory. Presumably all nineteen of the clergy listed in the Red Book as having transferred last year were granted such letters by their diocesans. (It would make no sense for a diocesan to issue a letter dimissory to himself; that is why there is no provision for it in the Canons. When a diocesan wants to transfer, or work elsewhere, he just leaves.)

What rankles the Chief Kaitiff and her colleagues, apparently, is when a member of the clergy wishes to transfer to another province in the Communion, but to remain geographically within the confines of the United States. (Aside: this is not what Bishop Ackerman did -- he really was going to Bolivia, but not to function as a bishop there.) They cannot accept that any other province in the Communion could have a legitimate reason for operating parishes and missions within this country. Instead of rejoicing and being glad for the souls thereby being ministered to by others with whom they profess to be in Communion, they insist that such souls must go to another denomination entirely if they choose to leave the Church. "It's our way or the highway!" And that desertion of mission is the final (and terminal) sign of ECUSA's succumbing to the Second Law.

In such cases, the Chief Kaitiff and those who think like her hold that the departing clergy (and the intruding provinces) are "competing" with "their franchise." Here is what Ms. Jefferts Schori wrote recently to the House of Bishops on this subject (I have added the bold for emphasis):

I will continue to uphold two basic principles in the work some of us face in dealing with former Episcopalians who claim rights to church property or assets. Our participation in God’s mission as leaders and stewards of The Episcopal Church means that we expect a reasonable and fair financial arrangement in any property settlement, and that we do not make settlements that encourage religious bodies who seek to replace The Episcopal Church.

Pragmatically, the latter means property settlements need to include a clause that forbids, for a period of at least five years, the presence of bishops on the property who are not members of this House, unless they are invited by the diocesan bishop for purposes which do not subvert mission and ministry in the name of this Church.

The Chief Kaitiff here gives expression to her greatest fear: that of being "replaced". So to view what is going on is to contribute to the decline and fall of the Episcopal Church (USA), and indeed to hasten its demise. The very act of viewing the mission of the Church as one of "competition" for members skews its mission. To take punitive and protective measures in a vain attempt to wall in the Holy Spirit, as though ECUSA had an exclusive franchise from the Trinity, is to see the Church not as a church, but as a beleaguered camp surrounded by hostile forces bent on doing it ill. That is not only a classic case of projection, but tragically, and fatally, it is to mistake the real enemy.

An organism that is in decline begins to shut down, and to cut itself off from the very outside sources that nourish it, as it feeds more and more upon itself. As dying people refuse all offers of food, so ECUSA is slowly but surely cutting itself off from the rest of the Anglican Communion. And as with C.S. Lewis' The Great Divorce, the punishment will be both self-inflicted and at the same time invisible to the victims. ECUSA had no use for the Windsor Report's reminder that one can choose to "walk apart", because ECUSA sees the rest of the Communion as not in a common purpose with it, but as in "competition". And with the way its leadership continues to act, ECUSA will have no need of the proposed Covenant, either. Its rejection of the Covenant will be fully parallel to the decision of those in Lewis' profound book who reject the world of light (and the Christian fellowship that comes with it) to climb back onto their sad little bus and return to the dismal and dreary surroundings of their own making.

Some say the Second Law is inexorable; that entropy cannot be reversed. As Asimov's story linked above illustrates, it would certainly take a great deal of effort and (divine) energy to do so. Like the Sun, however, the Episcopal Church (USA) is squandering its resources, and will eventually deplete them. The energy still coming into the Church is in decline, and has now fallen below the quantity that is flowing out. The trend only accelerates, as those who perceive the sinkhole make for the exits.

What is going on cannot usefully be called competition. It is called life in a fallen world.

Friday TED Talk: Rory Sutherland and the Perception of Value

ashaley@nccn.net (A. S. Haley) — Fri, 16 Oct 2009 07:20:00 +0000

The techniques of advertising come alive in this humorous and fast-moving talk by Rory Sutherland from the TED 2009 Global Conference in Oxford. He illustrates his central point -- that persuasion is far more effective in influencing behavior than compulsion -- with fascinating anecdotes from history: did you ever hear how Frederick the Great got the Germans started on potatoes? And you will laugh yourself silly watching him illustrate the brilliant campaign involving "Shreddies" (a Canadian breakfast cereal). Sit back, relax and enjoy as you learn how to rethink problems from the perspective of a brilliant student of advertising:

You can read an equally fascinating interview with Rory Sutherland at this link, and he also has a blog. A brief bio is here, and the high-resolution version of his talk is here (highly recommended). The talk may be downloaded in that and other formats from this page.

Some of Us on the Right Can Publish Private Correspondence, Too

ashaley@nccn.net (A. S. Haley) — Thu, 15 Oct 2009 16:25:00 +0000

[(Unfortunately Necessary) Warning: the following is a parody -- (UPDATE: except for the fact linked to in the postscript below, which is real). No one's private correspondence was purloined in order to write this post, and no email confidences were breached.]

To the Members of my Council of Advice:

Please read the enclosed "Manifesto" recently declared by the Right Reverend John Shelby Spong, the resigned diocesan of Newark. In it, he says, in part:

I have made a decision. I will no longer debate the issue of homosexuality in the church with anyone. I will no longer engage the biblical ignorance that emanates from so many right-wing Christians about how the Bible condemns homosexuality, as if that point of view still has any credibility. I will no longer discuss with them or listen to them tell me how homosexuality is "an abomination to God," about how homosexuality is a "chosen lifestyle," or about how through prayer and "spiritual counseling" homosexual persons can be "cured." Those arguments are no longer worthy of my time or energy. . . .

I will no longer act as if the Papal office is to be respected if the present occupant of that office is either not willing or not able to inform and educate himself on public issues on which he dares to speak with embarrassing ineptitude. I will no longer be respectful of the leadership of the Archbishop of Canterbury, who seems to believe that rude behavior, intolerance and even killing prejudice is somehow acceptable, so long as it comes from third-world religious leaders, who more than anything else reveal in themselves the price that colonial oppression has required of the minds and hearts of so many of our world's population. I see no way that ignorance and truth can be placed side by side, nor do I believe that evil is somehow less evil if the Bible is quoted to justify it. I will dismiss as unworthy of any more of my attention the wild, false and uninformed opinions of such would-be religious leaders as Pat Robertson, James Dobson, Jerry Falwell, Jimmy Swaggart, Albert Mohler, and Robert Duncan. My country and my church have both already spent too much time, energy and money trying to accommodate these backward points of view when they are no longer even tolerable.

I make these statements because it is time to move on. The battle is over. The victory has been won. There is no reasonable doubt as to what the final outcome of this struggle will be. Homosexual people will be accepted as equal, full human beings, who have a legitimate claim on every right that both church and society have to offer any of us. Homosexual marriages will become legal, recognized by the state and pronounced holy by the church. "Don't ask, don't tell" will be dismantled as the policy of our armed forces. We will and we must learn that equality of citizenship is not something that should ever be submitted to a referendum. Equality under and before the law is a solemn promise conveyed to all our citizens in the Constitution itself. Can any of us imagine having a public referendum on whether slavery should continue, whether segregation should be dismantled, whether voting privileges should be offered to women? The time has come for politicians to stop hiding behind unjust laws that they themselves helped to enact, and to abandon that convenient shield of demanding a vote on the rights of full citizenship because they do not understand the difference between a constitutional democracy, which this nation has, and a "mobocracy," which this nation rejected when it adopted its constitution. We do not put the civil rights of a minority to the vote of a plebiscite.

I will also no longer act as if I need a majority vote of some ecclesiastical body in order to bless, ordain, recognize and celebrate the lives and gifts of gay and lesbian people in the life of the church. No one should ever again be forced to submit the privilege of citizenship in this nation or membership in the Christian Church to the will of a majority vote. . . .

I know that all of you will join me in expressing support for the strong stand taken by our colleague on an issue that is so important to the mission and life of the Church in these difficult times. But I do not write you to ask for anything so obvious.

My problem comes from a question raised by one of my staff: Has Bishop Spong, through this Manifesto, expressed his renunciation of his ordination vows? Should I accept his declaration as the written statement which Canon III.12.7 requires for me to pronounce that he is "released from the obligations of all Ministerial offices, and is deprived of the right to exercise the gifts and spiritual authority as a Minister of God's Word and Sacraments conferred in Ordinations"?

I cannot find in the Manifesto, although I have searched its language carefully, anything equivalent to what Bishop Jack Iker wrote, and which I accepted as his statement of renunciation. Some of you may remember his statement, which was as follows:

Katharine Jefferts Schori has no authority over me or my ministry as a Bishop in the Church of God. She never has, and she never will.

Since November 15, 2008, both the Episcopal Diocese of Fort Worth and I as the Diocesan Bishop have been members of the Anglican Province of the Southern Cone. As a result, canonical declarations of the Presiding Bishop of The Episcopal Church pertaining to us are irrelevant and of no consequence.

This was a clear affront to my authority, and thus constituted a renunciation of Bishop Iker's ordination vows under the Canon. I accepted it as such, and released Bishop Iker from all ministerial obligations. Note that, while Bishop Spong does not overtly reject my authority in the way that Bishop Iker did, he says that he will no longer act as though he "needs a majority vote of some ecclesiastical body" to authorize him to do certain things. Is this an indirect slap at the House of Bishops?

I also did not find in Bishop Spong's Manifesto another clear indication of renunciation -- namely, a denial of any intent to do so. You will recall that Bishop Wantland had written to me, and said:

I am not resigning my Orders, nor am I abandoning the communion of The Episcopal Church, being a member of a sister Province of the Anglican Communion, in compliance with the provisions of Canon IV.9. However, because I am no longer a member of The Episcopal Church, although residing within its jurisdiction in Oklahoma, I am no longer eligible to be a regular member of its House of Bishops. I therefore request that I be admitted as an honorary member of the (TEC) House of Bishops.

This was about as clear a statement of renunciation as anyone could wish for, and I treated it as such. I did the same, you will recall, in the case of Bishop Henry Scriven, who had written to tell me he was resigning from the House of Bishops to return to be a Bishop in the Church of England. That, too, was a clear renunciation of his ordination vows when he joined this Church, and so I released him from all of his ministerial obligations.

I have some fears that with all of the current controversy in the Church, some will accuse me of applying a double standard if I do not accept Bishop Spong's statement as a renunciation of his vows. Hence this letter to you, and my request for your formal advice. Bishops Iker, Wantland and Scriven were easy cases, compared to this. It seems to fall between the clear lines of renunciation which they represented, and the equally clear lines of non-renunciation, as when Gene Robinson announced he was horrified by the "specifically and aggressively Christian" prayers used for past presidential inaugurations. Despite the rumor started by an unscrupulous blogger, I did not treat his statement as the renunciation of his ministry which some thought it was.

Please give this letter and its enclosure your careful and prayerful consideration, and then let me know what you think. On the one hand, I welcome this affirmation of principled support for our gay and lesbian friends and colleagues. But on the other hand, I wish that John had not couched it in such terms of ecclesiastical disobedience. As with those protesters who have to face the consequences of going to jail, I fear I may have to let Bishop Spong pay the price of his conscience.

Yours in Christ,

+Katharine

P.S.: You will remember from my earlier letter to you that Bishop Keith Ackerman, the resigned diocesan of Quincy, wrote me last July to inform me that he would be working for the Diocese of Bolivia in the Anglican Province of the Southern Cone. This is an easy case, and parallels that of Bishops Iker, Wantland and Scriven mentioned earlier, and I am glad to report that all of you agreed with that assessment. You will shortly see my official announcement accepting Bishop Ackerman's renunciation of his ordained ministry. The Episcopal Church may be a constituent part of the Anglican Communion, but we simply have no mechanism by which I can permit one of our bishops to serve in another province of the Communion. The fact that Bishops are ordained into "the one holy catholic church" does not change the fact that as your presiding bishop, I decide who stays and who goes.

The Bad News Will Out

ashaley@nccn.net (A. S. Haley) — Wed, 14 Oct 2009 18:46:00 +0000

There is nothing quite so shamefully fascinating (and fascinatingly shameful) as watching how the left tries valiantly to spin bad news. The unemployment numbers have been understated now for a number of years, because they simply stop counting as "unemployed" those who have not managed to find a job for twelve months or more. So the official rate counts only those who have been unemployed for less than a year. And even then, the number has risen far beyond what the leftists told us would happen once they rushed through Congress the unread "stimulus bill" -- a pork-laden, crony-fattening, insider-larding blockbuster of a mortgage on our children and our children's children for which no politician in office today should dare admit they voted.

The dollar, meanwhile is losing its status as a reserve currency, because people in other countries have caught on to the fact that the current administration has no plans whatsoever to turn off the printing presses. But neither the Fed nor the administration admits this; the former goes on merrily creating "money" out of thin air with which to purchase the latter's equally worthless (since foreigners aren't buying them any more) bonds.

And in the Anglican Communion, it seems as though a thick, deep fog has descended over its nominal leaders. The Archbishop of Canterbury is valiantly looking anywhere but at the ongoing crackup of the Communion, as he gallivants around talking up the need to scale back population and economies in order to alleviate global warming. I have news for his Grace (since apparently no one else is telling him): Population is declining in Western, Christian countries -- no thanks, apparently to Christianity, which seems unable these days to offer the heathens anything worthwhile to convince them to marry and have children. And economies are scaling back, without any mandates from politicians; it happens to be a consequence of so many people being out of work. And global warming is scaling back (alleviating), too -- but not because of the diminished pace of the world's economies. No, the last eleven years have witnessed a cooling trend in direct proportion to the declining phase of the sunspot cycle -- a phenomenon that is wholly out of man's control.

In the marvel of bureaucracy that is ECUSA, we have the leadership scrambling to hide the only objective evidence of the utter failure of their scorched-earth, leave-no-prisoners litigation strategy: people are staying away from being associated with lawsuits, and with "gay rights" as a subject for religion and sermons. (I remind the readers of this blog, as I must from time to time, that there are no rights of any kind before God, because we are all sinners in His eyes.) To preach the Gospel of redemption while at the same time promoting something both the Bible and the Book of Common Prayer do not allow is simply too much hypocrisy for the ordinary person. The traditional people who used to fill the pews are reacting as any sensible person would, and are increasingly going elsewhere to hear a coherent message, and to support a cause that actually helps people, instead of beggaring them while making only lawyers rich.

This is not to say that one can not hear a good traditional Christian message in Episcopal Churches on Sunday -- there are still, fortunately, thousands of such churches scattered across the country. But even they are taking a hit because of the shenanigans at the national level. In my own small (and very orthodox) parish, the budget had to be cut mid-year by more than 12% to adjust to lost revenues and declining attendance.

There is, accordingly, no shortage of very bad news. But it is not the sort of bad news that you read about in the standard media. No, the media and those on the left who still read them are obsessed all of a sudden with the supposed "lack of civility" in civil discourse -- while they pile on Rush Limbaugh for saying things he never said. I am sorry, but after listening and reading for eight years about the "war criminal Bush", seeing plays, movies and articles written about his "assassination" and how to pull it off, and hearing how the left is still blaming him for the mess we are in (I remind the left that both the TARP and the stimulus bills were enacted by a Democrat-run Congress), such complaints have all the legitimacy of the President's last promise to cut the deficit.

I cannot put my finger on it exactly, but there is something very "Decline and Fall of Rome"-ish about the trend of current events. In Rome, too, as things began to go downhill from its days of heroism and glory, the lawsuits multiplied (with results just as random and unpredictable as they are today), the troops were brought home to be safe as the barbarians made things rough on the frontiers, productive businesses were taxed and taxed to pay for the emperors' extravagances until people were put out of work, farms went fallow and food had to be brought in increasingly from greater and greater distances, and the citizens of Rome partied on as though there were no tomorrow. No one at the top could bring themselves to describe the bad news as it was happening; instead, a few messengers who brought ill tidings were put to death. And so, guess what? Nobody brought any news to Rome about the barbarians advancing toward the gates, until it was too late.

There is one thing one can say about the current scene, in both the country and in the Anglican Communion, that is utterly and absolutely certain: things cannot continue as they are. There will be change -- and it probably will not be what you hoped for.

The Trojan Canon

ashaley@nccn.net (A. S. Haley) — Mon, 12 Oct 2009 20:52:00 +0000

Over at the Big Hollywood blog (linked at the right, under "Cannon Fodder"), film producer Leigh Scott has put up a post entitled "Debating Leftists Is Like Debating Charles Manson." (Now, how is that for a title to provoke controversy and backlash?) He makes his central point in this way:

Debating leftists is like debating Charles Manson. It’s crazy talk. When you debate a leftist you never get to debate the policy. You debate their intended outcomes and their perception of who you are.

I have reluctantly come to the same conclusion -- well, not that it's the same as debating Charles Manson, but that it is crazy-making, for precisely the reasons Mr. Scott cites. Once cannot logically debate anything with those on the left, because they are immune to logic and its capacity to convince, or even persuade. They are not interested in following Step A to Step B to Step C and so on to see if one can get to Outcome (Conclusion) X. No, for them, if they react emotionally to it, then Outcome X is a foregone conclusion, and they simply go right to it, never mind how they get there. Recent decisions such as those by the trial courts in San Joaquin and Pittsburgh give them no trouble at all, because the results (outcomes) are right in their view: "You have to turn over the property, you orthodites [or radicals, or homophobes -- or insert some other but equally pejorative term], because it's ours, not yours!"

And when they say the property is theirs, of course, they mean it belongs to the Diocese and to the Episcopal Church (USA). And just how did it come to be the property of those entities, who never paid a dime for it, or for its upkeep? Here is what passes for an explanation among those on the left:

Here's a link to the press release from the St. James (Anglican) press release about this week's Supreme Court decision refusing to hear the suit of the Schismo-palians against the Diocese of Los Angeles. It includes their determination to keep on keepin' on by continuing to litigate, with the "spin:" In our diverse and freedom-loving land, no one should have their property confiscated over religious belief.

Couldn't agree with them more. The problem -- of course -- is that it isn't "their" property to begin with. Belongs to the Diocese of Los Angeles. They know it. They don't like it. And so they continue to use the deep pockets of those funding this whole Schismatagora to keep the lawsuits coming -- all the while blaming those who want to STAY in the Episcopal Church for the whole bloody mess.

(As you might be able to tell, I'm pretty much out of patience/on my last gay nerve with it all)

How is this illogical? Let me count the ways . . .

To begin with, St. James Parish did not file the lawsuits. The Diocese of Los Angeles did, and then was joined by the Episcopal Church (USA), who brought a separate lawsuit against St. James.

Next, St. James had not even answered those complaints at the time of the ruling by the California Supreme Court, which they asked the United States Supreme Court to review. Before a case can be over, the defendant must first answer the complaint; then there is a trial. But to the writer just quoted, St. James's filing its answers, and asking the Supreme Court to review a decision made before those answers, constitutes the offense of "keep[ing] the lawsuits coming."

"It isn't 'their' property to begin with. Belongs to the Diocese of Los Angeles." That's not what the deeds say. Ask for a title report on the St. James property, and the title company will tell you (and will agree to insure what it tells you) that the owners of the property are the wardens and the vestry of St. James Parish. The claim that it "belongs" to the Diocese is based on the Dennis Canon -- but even there the writer cannot get it straight. Take a look at the language of the Canon:

All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons.

The "property . . . is held in trust for this Church and the Diocese thereof . . ." All right, so we have a trust, and we have some specific beneficiaries. But who is the trustee? The trust is expressed in the passive voice: "is held in trust". Normally, to create a legal trust, the language used is as follows: "I, AB, convey my land Blackacre to CD, trustee, to hold the same in trust for EF on the following terms and conditions . . .". The Episcopal Church (USA), however, did not even try to create that kind of trust when it enacted (if it ever did) its Dennis Canon. It did not own the property, so it could hardly say: "The Protestant Episcopal Church in the United States of America hereby conveys the land of St. James Parish in Newport Beach, California to X, as trustee, to hold the same in trust for it and for the Diocese of Los Angeles . . ."

Can the trustee be the Parish of St. James itself? Normally, again, a trustee is not given unlimited power and authority over the property held in trust. The trust document spells out the limitations on just what the trustee may do. Here again, the only limitation on the parish, if it is the trustee of the property it owns outright in fee (a contradiction in terms again -- either you own property outright, or you own it in trust, but not both simultaneously), is that it remain a part of the Episcopal Church (USA).

So what we have here is not a real trust, but a conveyance subject to what the law calls a "condition subsequent". For example, A might deed Blackacre to the City of C "for use as an airport, for as long as the City continues to use it as an airport." If the City tries to use the land for something other than an airport, it forfeits its right to own the property, and the land reverts to A.

The way the Dennis Canon seems to operate, then, is this: land which is held in "fee simple absolute" (to use the technical legal term, i.e., held outright) by the vestry of a parish is converted in some mystical way, simply by the enactment of an obscure national canon, into a "fee simple determinable", which comes to an end on the occurrence of a condition subsequent to the original conveyance -- namely, the ceasing of the parish in question to be a part of the Church, and subject to its Constitution and canons. And yet there is no "original conveyance" to the parish which imposes the condition subsequent! All there is, is the Canon -- which is scarcely a deed or conveyance.

Not only is there no conveyance upon an express condition, but the condition expressed, that the parish remain part of the Church, is made a condition of the capacity to remain as the unnamed "trustee" of the property. In other words, it serves as a qualification upon the "right" to be a trustee, and not upon the right to use the land. (The Canon in no way tries to express what limitations are placed upon the trustee's "power and authority" if it ceases to belong to the Church; it simply implies that the trustee is then no longer qualified to be trustee.)

But as we saw above, there is no trust actually created, because the "trustee" (if we assume it is the parish) can do whatever it likes with the property so long as it remains a part of the Church! It can let the property go unmaintained; or if the property is destroyed in a fire, it has no obligation (under the Dennis Canon, anyway) to rebuild it!

Whoever heard of such a crazy trust? Yet the left doesn't bother to analyze it -- the left simply looks at the outcome it desires, and says: "Aha! You've left the Church! the property is now ours!" And stranger still, courts in a number of States have gone along unthinkingly with this non-thinking.

But that does not make the Dennis Canon a proper trust. Nor is it a proper conversion of title from fee simple absolute into a fee simple determinable. It is neither fish nor fowl, neither a trust nor a conveyance. It is a crazy hybrid concoction of the illogical left.

As I say, if you meet the left on their "terms", they will make you think you are crazy. The Dennis Canon -- never properly drafted, never properly enacted, and never properly interpreted -- is a recipe for madness. No wonder so many millions are being spent on both sides to sort out what it means legally. It should be called the Trojan Canon.

In Lieu of a TED Talk: Mother Teresa

ashaley@nccn.net (A. S. Haley) — Fri, 09 Oct 2009 15:23:00 +0000

Since the Nobel Prize Committee has seen fit to award President Obama its Peace Prize (see Ann Althouse on why he was not awarded the Prize for Literature), I am foregoing the usual Friday TED Talk at this site to bring you these words from one of the previous Nobel Laureates (1979): Mother Teresa. What she said in accepting the Prize then could not be more apt a reproach today, both to the Committee and to its Prize recipient (H/T: Pat Dague, at Transfigurations):

"But I feel that the greatest destroyer of peace today is abortion, because it is a war against the child - a direct killing of the innocent child - murder by the mother herself. And if we accept that a mother can kill even her own child, how can we tell other people not to kill one another? How do we persuade a woman not to have an abortion? As always, we must persuade her with love, and we remind ourselves that love means to be willing to give until it hurts. Jesus gave even his life to love us. So the mother who is thinking of abortion, should be helped to love - that is, to give until it hurts her plans, or her free time, to respect the life of her child. The father of that child, whoever he is, must also give until it hurts. By abortion, the mother does not learn to love, but kills even her own child to solve her problems. And by abortion, the father is told that he does not have to take any responsibility at all for the child he has brought into the world. That father is likely to put other women into the same trouble. So abortion just leads to more abortion. Any country that accepts abortion is not teaching the people to love, but to use any violence to get what they want. That is why the greatest destroyer of love and peace is abortion. " ...Mother Teresa