Wednesday, May 16, 2018

South Carolina Case Goes to SCOTUS Conference

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

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

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

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

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

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

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

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

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

Monday, May 14, 2018

Where Did Israel's Temples Stand?

(Part One of a Series)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, April 8, 2018

Texas Court's Mighty Labor Is in Vain

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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