Wednesday, June 26, 2013

On Today's Supreme Court Decisions

The decision striking down DOMA is here; the decision throwing out the Prop. 8 appeal is here.

Sorry, but I'm too swamped at the moment with litigation work to do a full-blown post on them. With regard to the former, I'll just say that it shows how wrong all those members of Congress were when they claimed that Congress had the power to address the issue of same-sex marriages through legislation, when what they really needed to do was to pass a Constitutional amendment. Now the Supreme Court has told them so, and now we have an entirely different Congress and a President who would not support any such amendment. So that's that -- but at least it restores to the States the power that should have been theirs all along.

With regard to the Prop. 8 decision, note how the decision by the Court—to vacate the Ninth Circuit’s too-too-clever finessing of the situation (where it said that Prop. 8 was unconstitutional because it took away from a class of people what the State’s Supreme Court had seen fit to grant them by fiat)—leaves Californians exactly with what they’ve given themselves. They have elected a Supreme Court which champions gay rights, and a Governor and attorney general who can’t be bothered to defend the people’s initiative on an appeal, because they disagree with the majority who enacted it. There’s hardly any room left for outrage, given the actors Californians have chosen for themselves.

I've already covered what could happen now in this earlier post (plus another one linked there), and I have nothing to add. You'll find all you need to know there.

Tuesday, June 18, 2013

198 Years Ago: 24 Hours that Changed all Europe

Nearly two hundred years ago today came a night and day that altered the course of Western history. Let us allow that master storyteller, Victor Hugo, whose father served under Napoleon, to relate to us what happened. (Note: this excerpt is from Vol. II of Les misérables, tr. by Isabel F. Hapgood [1887]; it is to be taken with a grain of salt, as the account of Ney's charge does not exactly square with modern accounts. But it's still a fantastic read, and for its time was the first ever to be told from the French point of view):

If it had not rained in the night between the 17th and the 18th of June, 1815, the fate of Europe would have been different.

A few drops of water, more or less, decided the downfall of Napoleon.

All that Providence required in order to make Waterloo the end of Austerlitz was a little more rain, and a cloud traversing the sky out of season sufficed to make a world crumble.

The battle of Waterloo could not be begun until half-past eleven o'clock, and that gave Blücher time to come up. Why? Because the ground was wet. The artillery had to wait until it became a little firmer before they could manoeuvre.

Napoleon was an artillery officer, and felt the effects of this.

The foundation of this wonderful captain was the man who, in the report to the Directory on Aboukir, said: "Such a one of our balls killed six men." All his plans of battle were arranged for projectiles.

The key to his victory was to make the artillery converge on one point.

He treated the strategy of the hostile general like a citadel, and made a breach in it. He overwhelmed the weak point with grape-shot; he joined and dissolved battles with cannon. There was something of the sharpshooter in his genius. To beat in squares, to pulverize regiments, to break lines, to crush and disperse masses, --for him everything lay in this, to strike, strike, strike incessantly -- and he intrusted this task to the cannon-ball. A redoubtable method, and one which, united with genius, rendered this gloomy athlete of the pugilism of war invincible for the space of fifteen years.

On the 18th of June, 1815, he relied all the more on his artillery, because he had numbers on his side. Wellington had only one hundred and fifty-nine mouths of fire [cannon]; Napoleon had two hundred and forty.

Suppose the soil dry, and the artillery capable of moving, the action would have begun at six o'clock in the morning.

The battle would have been won and ended at two o'clock, three hours before the change of fortune in favor of the Prussians.

His plan of battle was, by the confession of all, a masterpiece.

To go straight to the centre of the Allies' line, to make a breach in the enemy, to cut them in two, to drive the British half back on Hal, and the Prussian half on Tongres, to make two shattered fragments of Wellington and Blücher, to carry Mont-Saint-Jean, to seize Brussels, to hurl the German into the Rhine, and the Englishman into the sea.

All this was contained in that battle, according to Napoleon.

Afterwards people would see....

Those persons who wish to gain a clear idea of the battle of Waterloo have only to place, mentally, on the ground, a capital A. The left limb of the A is the road to Nivelles, the right limb is the road to Genappe, the tie of the A is the hollow road to Ohain from Braine-l'Alleud. The top of the A is Mont-Saint-Jean, where Wellington is; the lower left tip is Hougomont, where Reille is stationed with Jerome Bonaparte; the right tip is the Belle-Alliance, where Napoleon was. At the centre of this chord is the precise point where the final word of the battle was pronounced. It was there that the lion has been placed, the involuntary symbol of the supreme heroism of the Imperial Guard.

The triangle included in the top of the A, between the two limbs and the tie, is the plateau of Mont-Saint-Jean. The dispute over this plateau constituted the whole battle. The wings of the two armies extended to the right and left of the two roads to Genappe and Nivelles; d'Erlon facing Picton, Reille facing Hill.

Behind the tip of the A, behind the plateau of Mont-Saint-Jean, is the forest of Soignes.

As for the plain itself, let the reader picture to himself a vast undulating sweep of ground; each rise commands the next rise, and all the undulations mount towards Mont-Saint-Jean, and there end in the forest.

Two hostile troops on a field of battle are two wrestlers. It is a question of seizing the opponent round the waist. The one seeks to trip up the other. They clutch at everything: a bush is a point of support; an angle of the wall offers them a rest to the shoulder; for the lack of a hovel under whose cover they can draw up, a regiment yields its ground; an unevenness in the ground, a chance turn in the landscape, a cross-path encountered at the right moment, a grove, a ravine, can stay the heel of that colossus which is called an army, and prevent its retreat.

He who quits the field is beaten; hence the necessity devolving on the responsible leader, of examining the most insignificant clump of trees, and of studying deeply the slightest relief in the ground.

The two generals had attentively studied the plain of Mont-Saint-Jean, now called the plain of Waterloo. In the preceding year, Wellington, with the sagacity of foresight, had examined it as the possible seat of a great battle. Upon this spot, and for this duel, on the 18th of June, Wellington had the good post, Napoleon the bad post.

The English army was stationed above, the French army below....

It had rained all night, the earth had been cut up by the downpour, the water had accumulated here and there in the hollows of the plain as if in casks; at some points the gear of the artillery carriages was buried up to the axles, the surcingles of the horses were dripping with liquid mud. If the wheat and rye trampled down by this cohort of transports on the march had not filled in the ruts and strewn a litter beneath the wheels, all movement, particularly in the valleys, in the direction of Papelotte would have been impossible....

The affair began late. Napoleon, as we have already explained, was in the habit of keeping all his artillery well in hand, like a pistol, aiming it now at one point, now at another, of the battle; and it had been his wish to wait until the horse batteries could move and gallop freely. In order to do that it was necessary that the sun should come out and dry the soil.

But the sun did not make its appearance. It was no longer the rendezvous of Austerlitz. When the first cannon was fired, the English general, Colville, looked at his watch, and noted that it was thirty-five minutes past eleven.

The action was begun furiously, with more fury, perhaps, than the Emperor would have wished, by the left wing of the French resting on Hougomont. At the same time Napoleon attacked the centre by hurling Quiot's brigade on La Haie-Sainte, and Ney pushed forward the right wing of the French against the left wing of the English, which rested on Papelotte.

The attack on Hougomont was something of a feint; the plan was to draw Wellington thither, and to make him swerve to the left.

This plan would have succeeded if the four companies of the English guards and the brave Belgians of Perponcher's division had not held the position solidly, and Wellington, instead of massing his troops there, could confine himself to despatching thither, as reinforcements, only four more companies of guards and one battalion from Brunswick.


Towards four o'clock the condition of the English army was serious.

The Prince of Orange was in command of the centre, Hill of the right wing, Picton of the left wing. The Prince of Orange, desperate and intrepid, shouted to the Dutch-Belgians: "Nassau! Brunswick! Never retreat!"

Hill, having been weakened, had come up to the support of Wellington; Picton was dead. At the very moment when the English had captured from the French the flag of the 105th of the line, the French had killed the English general, Picton, with a bullet through the head.

The battle had, for Wellington, two bases of action, Hougomont and La Haie-Sainte; Hougomont still held out, but was on fire; La Haie-Sainte was taken. Of the German battalion which defended it, only forty-two men survived; all the officers, except five, were either dead or captured. Three thousand combatants had been massacred in that barn. A sergeant of the English Guards, the foremost boxer in England, reputed invulnerable by his companions, had been killed there by a little French drummer-boy. Baring had been dislodged, Alten put to the sword. Many flags had been lost, one from Alten's division, and one from the battalion of Lunenburg, carried by a prince of the house of Deux-Ponts. The Scotch Grays no longer existed; Ponsonby's great dragoons had been hacked to pieces. That valiant cavalry had bent beneath the lancers of Bro and beneath the cuirassiers of Travers; out of twelve hundred horses, six hundred remained; out of three lieutenant-colonels, two lay on the earth -- Hamilton wounded, Mater slain. Ponsonby had fallen, riddled by seven lance-thrusts. Gordon was dead. Marsh was dead.

Two divisions, the fifth and the sixth, had been annihilated.

Hougomont injured, La Haie-Sainte taken, there now existed but one rallying-point, the centre. That point still held firm.

Wellington reinforced it. He summoned thither Hill, who was at Merle-Braine; he summoned Chasse, who was at Braine-l'Alleud.

The centre of the English army, rather concave, very dense, and very compact, was strongly posted. It occupied the plateau of Mont-Saint-Jean, having behind it the village, and in front of it the slope, which was tolerably steep then. It rested on that stout stone dwelling which at that time belonged to the domain of Nivelles, and which marks the intersection of the roads -- a pile of the sixteenth century, and so robust that the cannon-balls rebounded from it without injuring it. All about the plateau the English had cut the hedges here and there, made embrasures in the hawthorn-trees, thrust the throat of a cannon between two branches, embattled the shrubs.

There artillery was ambushed in the brushwood. This punic labor, incontestably authorized by war, which permits traps, was so well done, that Haxo, who had been despatched by the Emperor at nine o'clock in the morning to reconnoitre the enemy's batteries, had discovered nothing of it, and had returned and reported to Napoleon that there were no obstacles except the two barricades which barred the road to Nivelles and to Genappe. It was at the season when the grain is tall; on the edge of the plateau a battalion of Kempt's brigade, the 95th, armed with carabines, was concealed in the tall wheat.

Thus assured and buttressed, the centre of the Anglo-Dutch army was well posted. The peril of this position lay in the forest of Soignes, then adjoining the field of battle, and intersected by the ponds of Groenendael and Boitsfort. An army could not retreat thither without dissolving; the regiments would have broken up immediately there.

The artillery would have been lost among the morasses. The retreat, according to many a man versed in the art -- though it is disputed by others -- would have been a disorganized flight.

To this centre, Wellington added one of Chasse's brigades taken from the right wing, and one of Wincke's brigades taken from the left wing, plus Clinton's division.... This placed twenty-six battalions under his hand.

The right wing, as Charras says, was thrown back on the centre.

An enormous battery was masked by sacks of earth at the spot where there now stands what is called the "Museum of Waterloo."

Besides this, Wellington had, behind a rise in the ground, Somerset's Dragoon Guards, fourteen hundred horse strong.

It was the remaining half of the justly celebrated English cavalry. Ponsonby destroyed, Somerset remained....

Wellington, uneasy but impassive, was on horseback, and there remained the whole day in the same attitude ...  Wellington was coldly heroic. The bullets rained about him.

His aide-de-camp, Gordon, fell at his side. Lord Hill, pointing to a shell which had burst, said to him: "My lord, what are your orders in case you are killed?" "To do like me," replied Wellington.

To Clinton he said laconically, "To hold this spot to the last man."

The day was evidently turning out ill. Wellington shouted to his old companions of Talavera, of Vittoria, of Salamanca: "Boys, can retreat be thought of? Think of old England!"

Towards four o'clock, the English line drew back. Suddenly nothing was visible on the crest of the plateau except the artillery and the sharpshooters; the rest had disappeared: the regiments, dislodged by the shells and the French bullets, retreated into the bottom, now intersected by the back road of the farm of Mont-Saint-Jean; a retrograde movement took place, the English front hid itself, Wellington drew back.

"The beginning of retreat!" cried Napoleon.

Along the crest of the plateau [of Mont-Saint-Jean] ran a sort of trench whose presence it was impossible for the distant observer to divine.

What was this trench? Let us explain. Braine-l'Alleud is a Belgian village; Ohain is another. These villages, both of them concealed in curves of the landscape, are connected by a road about a league and a half in length, which traverses the plain along its undulating level, and often enters and buries itself in the hills like a furrow, which makes a ravine of this road in some places.

In 1815, as at the present day, this road cut the crest of the plateau of Mont-Saint-Jean between the two highways from Genappe and Nivelles; only, it is now on a level with the plain; it was then a hollow way. Its two slopes have been appropriated for the monumental hillock.

This road was, and still is, a trench throughout the greater portion of its course; a hollow trench, sometimes a dozen feet in depth, and whose banks, being too steep, crumbled away here and there, particularly in winter, under driving rains. Accidents happened here.

On the day of battle, this hollow road whose existence was in no way indicated, bordering the crest of Mont-Saint-Jean, a trench at the summit of the escarpment, a rut concealed in the soil, was invisible; that is to say, terrible.

The Emperor straightened himself up and fell to thinking.

Wellington had drawn back.

All that remained to do was to complete this retreat by crushing him.

Napoleon turning round abruptly, despatched an express at full speed to Paris to announce that the battle was won.

Napoleon was one of those geniuses from whom thunder darts.

He had just found his clap of thunder.

He gave orders to Milhaud's cuirassiers to carry the table-land of Mont-Saint-Jean.

There were three thousand five hundred of them. They formed a front a quarter of a league in extent. They were giant men, on colossal horses. There were six and twenty squadrons of them; and they had behind them to support them Lefebvre-Desnouettes's division -- the one hundred and six picked gendarmes, the light cavalry of the Guard, eleven hundred and ninety-seven men, and the lancers of the guard of eight hundred and eighty lances.

They wore casques without horse-tails, and cuirasses of beaten iron, with horse-pistols in their holsters, and long sabre-swords. That morning the whole army had admired them, when, at nine o'clock, with braying of trumpets and all the music playing "Let us watch o'er the Safety of the Empire," they had come in a solid column, with one of their batteries on their flank, another in their centre, and deployed in two ranks between the roads to Genappe and Frischemont, and taken up their position for battle in that powerful second line, so cleverly arranged by Napoleon, which, having on its extreme left Kellermann's cuirassiers and on its extreme right Milhaud's cuirassiers, had, so to speak, two wings of iron.

Aide-de-camp Bernard carried them the Emperor's orders. Ney drew his sword and placed himself at their head. The enormous squadrons were set in motion.

Then a formidable spectacle was seen.

All their cavalry, with upraised swords, standards and trumpets flung to the breeze, formed in columns by divisions, descended, by a simultaneous movement and like one man, with the precision of a brazen battering-ram which is effecting a breach, the hill of La Belle Alliance, plunged into the terrible depths in which so many men had already fallen, disappeared there in the smoke, then emerging from that shadow, reappeared on the other side of the valley, still compact and in close ranks, mounting at a full trot, through a storm of grape-shot which burst upon them, the terrible muddy slope of the table-land of Mont-Saint-Jean. They ascended, grave, threatening, imperturbable; in the intervals between the musketry and the artillery, their colossal trampling was audible.

Being two divisions, there were two columns of them; Wathier's division held the right, Delort's division was on the left. It seemed as though two immense adders of steel were to be seen crawling towards the crest of the table-land. It traversed the battle like a prodigy.

Nothing like it had been seen since the taking of the great redoubt of the Muskowa by the heavy cavalry; Murat was lacking here, but Ney was again present. It seemed as though that mass had become a monster and had but one soul. Each column undulated and swelled like the ring of a polyp. They could be seen through a vast cloud of smoke which was rent here and there. A confusion of helmets, of cries, of sabres, a stormy heaving of the cruppers of horses amid the cannons and the flourish of trumpets, a terrible and disciplined tumult; over all, the cuirasses like the scales on the hydra.

These narrations seemed to belong to another age.... Odd numerical coincidence -- twenty-six battalions rode to meet twenty-six battalions. Behind the crest of the plateau, in the shadow of the masked battery, the English infantry, formed into thirteen squares, two battalions to the square, in two lines, with seven in the first line, six in the second, the stocks of their guns to their shoulders, taking aim at that which was on the point of appearing, waited, calm, mute, motionless. They did not see the cuirassiers, and the cuirassiers did not see them.

They listened to the rise of this flood of men. They heard the swelling noise of three thousand horse, the alternate and symmetrical tramp of their hoofs at full trot, the jingling of the cuirasses, the clang of the sabres and a sort of grand and savage breathing.

There ensued a most terrible silence; then, all at once, a long file of uplifted arms, brandishing sabres, appeared above the crest, and casques, trumpets, and standards, and three thousand heads with gray mustaches, shouting, "Vive l'Empereur!" All this cavalry debouched on the plateau, and it was like the appearance of an earthquake.

All at once, a tragic incident; on the English left, on our right, the head of the column of cuirassiers reared up with a frightful clamor.

On arriving at the culminating point of the crest, ungovernable, utterly given over to fury and their course of extermination of the squares and cannon, the cuirassiers had just caught sight of a trench -- a trench between them and the English. It was the hollow road of Ohain.

It was a terrible moment. The ravine was there, unexpected, yawning, directly under the horses' feet, two fathoms deep between its double slopes; the second file pushed the first into it, and the third pushed on the second; the horses reared and fell backward, landed on their haunches, slid down, all four feet in the air, crushing and overwhelming the riders; and there being no means of retreat -- the whole column being no longer anything more than a projectile -- the force which had been acquired to crush the English crushed the French; the inexorable ravine could only yield when filled; horses and riders rolled there pell-mell, grinding each other, forming but one mass of flesh in this gulf: when this trench was full of living men, the rest marched over them and passed on.

Almost a third of Dubois's brigade fell into that abyss.

This began the loss of the battle.

A local tradition, which evidently exaggerates matters, says that two thousand horses and fifteen hundred men were buried in the hollow road of Ohain. This figure probably comprises all the other corpses which were flung into this ravine the day after the combat.

Napoleon, before giving the order for this charge of Milhaud's cuirassiers, had scrutinized the ground, but had not been able to see that hollow road, which did not even form a wrinkle on the surface of the plateau. Warned, nevertheless, and put on the alert by the little white chapel which marks its angle of junction with the Nivelles highway, he had probably put a question as to the possibility of an obstacle, to the guide Lacoste. The guide had answered 'No'. We might almost affirm that Napoleon's catastrophe originated in that folly from a peasant's head....

The battery was unmasked at the same moment with the ravine.

Sixty cannons and the thirteen squares darted lightning point-blank on the cuirassiers. The intrepid General Delort made the military salute to the English battery.

The whole of the flying artillery of the English had re-entered the squares at a gallop. The cuirassiers had not had even the time for a halt. The disaster of the hollow road had decimated, but not discouraged them. They belonged to that class of men who, when diminished in number, increase in courage.

The cuirassiers hurled themselves on the English squares.

At full speed, with bridles loose, swords in their teeth pistols in fist,--such was the attack.

There are moments in battles in which the soul hardens the man until the soldier is changed into a statue, and when all this flesh turns into granite. The English battalions, desperately assaulted, did not stir.

Then it was terrible.

All the faces of the English squares were attacked at once.

A frenzied whirl enveloped them. That cold infantry remained impassive.

The first rank knelt and received the cuirassiers on their bayonets, the second ranks shot them down; behind the second rank the cannoneers charged their guns, the front of the square parted, permitted the passage of an eruption of grape-shot, and closed again. The cuirassiers replied by crushing them. Their great horses reared, strode across the ranks, leaped over the bayonets and fell, gigantic, in the midst of these four living wells. The cannon-balls ploughed furrows in these cuirassiers; the cuirassiers made breaches in the squares. Files of men disappeared, ground to dust under the horses. The bayonets plunged into the bellies of these centaurs; hence a hideousness of wounds which has probably never been seen anywhere else. The squares, wasted by this mad cavalry, closed up their ranks without flinching.

Inexhaustible in the matter of grape-shot, they created explosions in their assailants' midst. The form of this combat was monstrous.

These squares were no longer battalions, they were craters; those cuirassiers were no longer cavalry, they were a tempest.

Each square was a volcano attacked by a cloud; lava contended with lightning.

The square on the extreme right, the most exposed of all, being in the air, was almost annihilated at the very first shock.

It was formed of the 75th regiment of Highlanders. The bagpipe-player in the centre dropped his melancholy eyes, filled with the reflections of the forests and the lakes, in profound inattention, while men were being exterminated around him, and seated on a drum, with his pibroch under his arm, played the Highland airs. These Scotchmen died thinking of Ben Lothian, as did the Greeks recalling Argos.

The sword of a cuirassier, which hewed down the bagpipes and the arm which bore it, put an end to the song by killing the singer.

The cuirassiers, relatively few in number, and still further diminished by the catastrophe of the ravine, had almost the whole English army against them, but they multiplied themselves so that each man of them was equal to ten. Nevertheless, some Hanoverian battalions yielded.

Wellington perceived it, and thought of his cavalry. Had Napoleon at that same moment thought of his infantry, he would have won the battle. This forgetfulness was his great and fatal mistake. All at once, the cuirassiers, who had been the assailants, found themselves assailed. The English cavalry was at their back.

Before them two squares, behind them Somerset; Somerset meant fourteen hundred dragoons of the guard. On the right, Somerset had Dornberg with the German light-horse, and on his left, Trip with the Belgian carabineers; the cuirassiers attacked on the flank and in front, before and in the rear, by infantry and cavalry, had to face all sides. What mattered it to them? They were a whirlwind.

Their valor was something indescribable.

In addition to this, they had behind them the battery, which was still thundering. It was necessary that it should be so, or they could never have been wounded in the back. One of their cuirasses, pierced on the shoulder by a ball from a biscayan [large gun], is in the collection of the Waterloo Museum.

For such Frenchmen nothing less than such Englishmen was needed.

It was no longer a hand-to-hand conflict; it was a shadow, a fury, a dizzy transport of souls and courage, a hurricane of lightning swords.

In an instant the fourteen hundred dragoon guards numbered only eight hundred. Fuller, their lieutenant-colonel, fell dead.

Ney rushed up with the lancers and Lefebvre-Desnouettes's light-horse. The plateau of Mont-Saint-Jean was captured, recaptured, captured again.

The cuirassiers quitted the cavalry to return to the infantry; or, to put it more exactly, the whole of that formidable rout collared each other without releasing the other. The squares still held firm.

There were a dozen assaults. Ney had four horses killed under him.

Half the cuirassiers remained on the plateau. This conflict lasted two hours.

The English army was profoundly shaken. There is no doubt that, had they not been enfeebled in their first shock by the disaster of the hollow road the cuirassiers would have overwhelmed the centre and decided the victory. This extraordinary cavalry petrified Clinton, who had seen Talavera and Badajoz. Wellington, three-quarters vanquished, admired heroically. He said in an undertone, "Sublime!"

The cuirassiers annihilated seven squares out of thirteen, took or spiked sixty pieces of ordnance, and captured from the English regiments six flags, which three cuirassiers and three chasseurs of the Guard bore to the Emperor, in front of the farm of La Belle Alliance.

Wellington's situation had grown worse. This strange battle was like a duel between two raging, wounded men, each of whom, still fighting and still resisting, is expending all his blood.

Which of the two will be the first to fall?

The conflict on the plateau continued.

What had become of the cuirassiers? No one could have told.

One thing is certain, that on the day after the battle, a cuirassier and his horse were found dead among the woodwork of the scales for vehicles at Mont-Saint-Jean, at the very point where the four roads from Nivelles, Genappe, La Hulpe, and Brussels meet and intersect each other. This horseman had pierced the English lines....

Wellington felt that he was yielding. The crisis was at hand.

The cuirassiers had not succeeded, since the centre was not broken through. As every one was in possession of the plateau, no one held it, and in fact it remained, to a great extent, with the English.

Wellington held the village and the culminating plain; Ney had only the crest and the slope. They seemed rooted in that fatal soil on both sides.

But the weakening of the English seemed irremediable.

The bleeding of that army was horrible. Kempt, on the left wing, demanded reinforcements. "There are none," replied Wellington; "he must let himself be killed!"

Almost at that same moment, a singular coincidence which paints the exhaustion of the two armies, Ney demanded infantry from Napoleon, and Napoleon exclaimed, "Infantry! Where does he expect me to get them? Does he think I can manufacture infantry?"

The Iron Duke remained calm, but his lips blanched. Vincent, the Austrian commissioner, Alava, the Spanish commissioner, who were present at the battle in the English staff, thought the Duke lost. At five o'clock Wellington drew out his watch, and he was heard to murmur these sinister words, "Blücher, or night!"

It was at about that moment that a distant line of bayonets gleamed on the heights in the direction of Frischemont.

Here comes the change of face in this giant drama.

Fate has these turns; the throne of the world was expected; it was Saint Helena that was seen.

If the little shepherd who served as guide to Bülow, Blücher's lieutenant, had advised him to debouch from the forest above Frischemont, instead of below Plancenoit, the form of the nineteenth century might, perhaps, have been different. Napoleon would have won the battle of Waterloo. By any other route than that below Plancenoit, the Prussian army would have come out upon a ravine impassable for artillery, and Bülow would not have arrived.

Now the Prussian general, Müffling, declares that one hour's delay, and Blücher would not have found Wellington on his feet. "The battle was lost."

It was time that Bülow should arrive, as will be seen. He had, moreover, been very much delayed. He had bivouacked at Dion-le-Mont, and had set out at daybreak; but the roads were impassable, and his divisions stuck fast in the mire. The ruts were up to the hubs of the cannons. Moreover, he had been obliged to pass the Dyle on the narrow bridge of Wavre; the street leading to the bridge had been fired by the French, so the caissons and ammunition-wagons could not pass between two rows of burning houses, and had been obliged to wait until the conflagration was extinguished. It was mid-day before Bülow's vanguard had been able to reach Chapelle-Saint-Lambert.

Had the action been begun two hours earlier, it would have been over at four o'clock, and Blücher would have fallen on the battle won by Napoleon. Such are these immense risks proportioned to an infinite which we cannot comprehend.

The Emperor had been the first, as early as mid-day, to descry with his field-glass, on the extreme horizon, something which had attracted his attention. He had said, "I see yonder a cloud, which seems to me to be troops." Then he asked the Duc de Dalmatie, "Soult, what do you see in the direction of Chapelle-Saint-Lambert?" The marshal, levelling his glass, answered, "Four or five thousand men, Sire; evidently Grouchy." But it remained motionless in the mist. All the glasses of the staff had studied "the cloud" pointed out by the Emperor. Some said: "It is trees." The truth is, that the cloud did not move. The Emperor detached Domon's division of light cavalry to reconnoitre in that quarter.

Bülow had not moved, in fact. His vanguard was very feeble, and could accomplish nothing. He was obliged to wait for the body of the army corps, and he had received orders to concentrate his forces before entering into line; but at five o'clock, perceiving Wellington's peril, Blücher ordered Bülow to attack, and uttered these remarkable words: "We must give air to the English army."

A little later, the divisions of Losthin, Hiller, Hacke, and Ryssel deployed before Lobau's corps, the cavalry of Prince William of Prussia debouched from the forest of Paris, Plancenoit was in flames, and the Prussian cannon-balls began to rain even upon the ranks of the guard in reserve behind Napoleon.

Every one knows the rest -- the irruption of a third army; the battle broken to pieces; eighty-six mouths of fire thundering simultaneously; Pirch the first coming up with Bülow; Zieten's cavalry led by Blücher in person, the French driven back; Marcognet swept from the plateau of Ohain; Durutte dislodged from Papelotte; Donzelot and Quiot retreating; Lobau caught on the flank; a fresh battle precipitating itself on our dismantled regiments at nightfall; the whole English line resuming the offensive and thrust forward; the gigantic breach made in the French army; the English grape-shot and the Prussian grape-shot aiding each other; the extermination; disaster in front; disaster on the flank; the Guard entering the line in the midst of this terrible crumbling of all things.

Conscious that they were about to die, they shouted, "Vive l'Empereur!" History records nothing more touching than that agony bursting forth in acclamations.

The sky had been overcast all day long. All of a sudden, at that very moment,--it was eight o'clock in the evening--the clouds on the horizon parted, and allowed the grand and sinister glow of the setting sun to pass through, athwart the elms on the Nivelles road.

They had seen it rise at Austerlitz.

Each battalion of the Guard was commanded by a general for this final catastrophe. Friant, Michel, Roguet, Harlet, Mallet, Poret de Morvan, were there. When the tall caps of the grenadiers of the Guard, with their large plaques bearing the eagle appeared, symmetrical, in line, tranquil, in the midst of that combat, the enemy felt a respect for France; they thought they beheld twenty victories entering the field of battle, with wings outspread, and those who were the conquerors, believing themselves to be vanquished, retreated; but Wellington shouted, "Up, Guards, and aim straight!"

The red regiment of English guards, lying flat behind the hedges, sprang up, a cloud of grape-shot riddled the tricolored flag and whistled round our eagles; all hurled themselves forwards, and the final carnage began. In the darkness, the Imperial Guard felt the army losing ground around it, and in the vast shock of the rout it heard the desperate flight which had taken the place of the "Vive l'Empereur!" and, with flight behind it, it continued to advance, more crushed, losing more men at every step that it took.

There were none who hesitated, no timid men in its ranks.

The soldier in that troop was as much of a hero as the general.

Not a man was missing in that suicide.

Ney, bewildered, great with all the grandeur of accepted death, offered himself to all blows in that tempest.

He had his fifth horse killed under him there. Perspiring, his eyes aflame, foaming at the mouth, with uniform unbuttoned, one of his epaulets half cut off by a sword-stroke from a horseguard, his plaque with the great eagle dented by a bullet; bleeding, bemired, magnificent, a broken sword in his hand, he said, "Come and see how a Marshal of France dies on the field of battle!" But in vain; he did not die.

He was haggard and angry. At Drouet d'Erlon he hurled this question, "Are you not going to get yourself killed?"

In the midst of all that artillery engaged in crushing a handful of men, he shouted: "So there is nothing for me! Oh! I should like to have all these English bullets enter my bowels!" Unhappy man, thou wert reserved for French bullets!

The rout behind the Guard was melancholy.

The army yielded suddenly on all sides at once -- Hougomont, La Haie-Sainte, Papelotte, Plancenoit. The cry "Treachery!" was followed by a cry of "Save yourselves who can!" An army which is disbanding is like a thaw. All yields, splits, cracks, floats, rolls, falls, jostles, hastens, is precipitated. The disintegration is unprecedented. Ney borrows a horse, leaps upon it, and without hat, cravat, or sword, places himself across the Brussels road, stopping both English and French. He strives to detain the army, he recalls it to its duty, he insults it, he clings to the rout.

He is overwhelmed. The soldiers fly from him, shouting, "Long live Marshal Ney!" Two of Durutte's regiments go and come in affright as though tossed back and forth between the swords of the Uhlans and the fusillade of the brigades of Kempt, Best, Pack, and Rylandt; the worst of hand-to-hand conflicts is the defeat; friends kill each other in order to escape; squadrons and battalions break and disperse against each other, like the tremendous foam of battle. Lobau at one extremity, and Reille at the other, are drawn into the tide. In vain does Napoleon erect walls from what is left to him of his Guard; in vain does he expend in a last effort his last serviceable squadrons....

Napoleon gallops past the line of fugitives, harangues, urges, threatens, entreats them. All the mouths which in the morning had shouted, "Long live the Emperor!" remain gaping; they hardly recognize him.

The Prussian cavalry, newly arrived, dashes forwards, flies, hews, slashes, kills, exterminates. Horses lash out, the cannons flee; the soldiers of the artillery-train unharness the caissons and use the horses to make their escape; transports overturned, with all four wheels in the air, clog the road and occasion massacres. Men are crushed, trampled down, others walk over the dead and the living. Arms are lost. A dizzy multitude fills the roads, the paths, the bridges, the plains, the hills, the valleys, the woods, encumbered by this invasion of forty thousand men.

Shouts despair, knapsacks and guns flung among the rye, passages forced at the point of the sword, no more comrades, no more officers, no more generals, an inexpressible terror. Zieten putting France to the sword at its leisure. Lions converted into goats. Such was the flight.

At Genappe, an effort was made to wheel about, to present a battle front, to draw up in line. Lobau rallied three hundred men.

The entrance to the village was barricaded, but at the first volley of Prussian canister, all took to flight again, and Lobau was taken.

That volley of grape-shot can be seen to-day imprinted on the ancient gable of a brick building on the right of the road at a few minutes' distance before you enter Genappe. The Prussians threw themselves into Genappe, furious, no doubt, that they were not more entirely the conquerors. The pursuit was stupendous.

Blücher ordered extermination. Roguet had set the lugubrious example of threatening with death any French grenadier who should bring him a Prussian prisoner. Blücher outdid Roguet. Duhesme, the general of the Young Guard, hemmed in at the doorway of an inn at Genappe, surrendered his sword to a huzzar of death, who took the sword and slew the prisoner. The victory was completed by the assassination of the vanquished.

Let us inflict punishment, since we are history: old Blücher disgraced himself. This ferocity put the finishing touch to the disaster. The desperate route traversed Genappe, traversed Quatre-Bras, traversed Gosselies, traversed Frasnes, traversed Charleroi, traversed Thuin, and only halted at the frontier.

Alas! and who, then, was fleeing in that manner? The Grand Army.

This vertigo, this terror, this downfall into ruin of the loftiest bravery which ever astounded history,--is that causeless?

No. The shadow of an enormous right is projected athwart Waterloo.

It is the day of destiny. The force which is mightier than man produced that day. Hence the terrified wrinkle of those brows; hence all those great souls surrendering their swords. Those who had conquered Europe have fallen prone on the earth, with nothing left to say nor to do, feeling the present shadow of a terrible presence.

Hoc erat in fatis. That day the perspective of the human race underwent a change. Waterloo is the hinge of the nineteenth century.

Might it have been possible for Napoleon to win this battle? We answer no. Why? Because of Wellington? Because of Blücher? No. Because of God.

For Bonaparte to be conqueror at Waterloo was no longer within the law of the nineteenth century. Another series of acts was under way in which Napoleon had no place. The ill-will of events had long been coming.

It was time for this titan to fall.

The excessive weight of this man in human destiny disturbed the equilibrium. This individual alone counted for more than the whole of mankind. This plethora of all human vitality concentrated within a single head, the world rising to the brain of one man, would be fatal to civilization if it endured. The moment had come for incorruptible supreme equity to look into it. Probably the principles and elements on which regular gravitation in the moral and material orders depend had begun to mutter. Reeking blood, overcrowded cemeteries, weeping mothers–these are formidable plaintiffs. When the earth is suffering from a surcharge, there are mysterious moanings from the deeps that the heavens hear.

Napoleon had been impeached before the Infinite, and his fall was decreed.

He annoyed God.

Waterloo is not a battle; it is the changing face of the universe.

Monday, June 17, 2013

El Gringo Viejo Is the Only One Making Sense of the Immigration Issue

Listen to him. Please.

From Marco Rubio to Rush Limbaugh, no one is making as much sense on the issue of immigration and "amnesty" as El Gringo Viejo. You owe it to yourselves to spread the link to his post far and wide.

Ignore, please, feeling superior about his spelling mistakes, which are the genuine evidence of fervor and fire from the heart. In this matter, the brain has little to say, anyway -- because this is a question of the law written upon our hearts.

El Gringo lives on both sides of the border -- and he knows whereof he speaks.

California Court of Appeal Denies ECUSA's Writ Petition

One of the longer-running cases brought by ECUSA in California is the Fresno lawsuit against former Episcopal Bishop John-David Schofield over the real property, bank accounts and other assets that belong to the (now) Anglican Diocese of San Joaquin. Readers who would like the full chronicle of events, and background for understanding where we are now, may consult the links on this page.

Most recently, I had written about the Fresno trial court's denial of ECUSA's motion for summary judgment / summary adjudication here, and then again here when that decision became final. Subsequently, I noted that ECUSA and its rump diocese and bishop had filed for a writ of mandate with the Fifth District Court of Appeal, whom they asked to reverse the ruling of the trial court.

Now, this morning comes word from the appellate court that it has summarily denied ECUSA's petition -- without further briefing, or hearing. This is the fate of over 90% of such petitions for extraordinary relief. The appellate court is reluctant to interfere with the process of going to trial, and will do so only when absolutely necessary to avoid having to try the case all over again.

In this case, the Court of Appeal evidently saw no harm in allowing the present case to go to trial, which is currently scheduled for January 6, 2014 in front of a jury. Stay tuned for more developments.

Friday, June 14, 2013

No News from Texas; Sad News from Virginia

As of today, June 14, the Supreme Court of Texas has yet to issue its opinion in the Fort Worth direct appeal brought by Bishop Iker and his co-trustees of the Episcopal Diocese of Fort Worth. Such decisions are normally released on Fridays, although toward the end of the term the Court also releases some decisions earlier in the week. For those who would like to monitor the page where any opinion will appear, here is the link.

This same day brings unhappy news, however, from the Supreme Court of Virginia, which has entered a one-page order denying the petition of The Falls Church for a rehearing. In doing so, it leaves intact the troubling decision which I discussed in this previous post. The opinion, however, is based almost entirely upon (a misreading of) Virginia law, and so the grounds for review by the United States Supreme Court are virtually nil. For churchgoers in Virginia, the problems created by the Supreme Court's interpretation of a State statute will be for the Virginia legislature to address and resolve.

Whether the Episcopal Diocese of Virginia can continue to maintain all of the properties handed to it by the Virginia Supreme Court is still an open question. And what the Diocese decides to do with those properties will speak more clearly about its priorities than anything that could be written at this point. For the Anglicans, however, the way is now clear for them to go forward, in a new beginning.

Let the Episcopal Diocese, in other words, pick up the pieces of the wreckage it has made of the Episcopal faith in Virginia. And let the Anglicans continue to adhere fast to the faith once delivered to the saints. The proof will be in the fruits which each produces.

Thursday, June 13, 2013

Another California Judge Denies Summary Relief to ECUSA (Updated)

[UPDATE 06/14/2013: I can now report that Judge Reed affirmed her tentative ruling at the close of the hearing on ECUSA's motion this morning. The case now goes to trial, which is scheduled for late July.]

Last month I wrote about the litigation lottery in California, in which a Kern County judge ruled against two Anglican parishes (St. Paul's in Bakersfield, and St. Michael's in Ridgecrest) that as a matter of law, their attempt to disaffiliate from ECUSA was invalid, while a Tulare County judge ruled -- on the same set of facts -- that there were disputed issues about the withdrawal of St. John's, in Porterville, which would require a full trial. The previous post provides all the background you will need to understand today's tentative ruling by a second Tulare County judge -- this time in favor of St. Paul's, in Visalia, also denying summary judgment to ECUSA on the same basic set of facts.

Using a formula that is by now well-tested in the California courts, the plaintiffs -- Provisional Bishop Talton and his rump diocese -- made the same arguments that worked with the judge in Kern County:
Here, Plaintiffs contend the Episcopal Church’s rules do not permit parishes to disaffiliate from the church and, as such the Diocese of San Joaquin and St. Paul’s Parish remain admitted as part of the Episcopal Church despite Defendants’ actions and claim of disaffiliation. Plaintiffs further assert that the members, vestrymen, and rector who claim allegiance to the Anglican Church have disaffiliated themselves (but not the parish) from the Episcopal Church by taking the actions that they did and they have no authority over parish affairs or property. Thus, Plaintiffs allege the transfer of property out of trust for the benefit of the Episcopal Church was without authority and is invalid. As a result, Plaintiffs contend Defendants are now improperly precluding members of the Episcopal Church from exercising control over parish property.
They relied upon the same California cases, too: cases from Los Angeles, Orange and San Diego Counties in which the departing parishes, unlike those in San Joaquin, did not have the permission of their bishop to disaffiliate. But Judge Reed saw through their claim that those cases were dispositive:
In particular, unlike the prior cases, here there is at least a reasonable inference that St. Paul’s Parish received valid permission from the bishop of the Diocese of San Joaquin to disaffiliate the parish from the Episcopal Church as permitted by the diocese’s canons. Further, there is sufficient evidence to support Defendants’ contention that after disaffiliation, the vestrymen of the parish retained authority to amend the parish’s corporate articles and bylaws in order to effectively transfer title of parish property to the Anglican Church.
Judge Reed explains the importance of Section 20.01(g) of the Canons of the Diocese of San Joaquin, and for this once, turns the tables on ECUSA by saying that it never objected to that Canon:
As to the issue of the parish’s right to disaffiliate from the church, it is undisputed that Canon XX, section 20.01(g) of the Diocese of San Joaquin has been an adopted canon of the diocese for many years, and that the plain language of section 20.01(g) allows for disaffiliation of the parish upon the written approval of the bishop of the diocese. 
Plaintiffs argue that section 20.01(g) is invalid because Episcopal Church rules do not allow for a parish to disaffiliate. They base their contention upon church rules that indicate parish canons may not conflict with church rules and that parish property is to be held in trust for the church. However, the evidence before the court does not show that the Episcopal Church has objected to section 20.01(g) in the past, or taken any action to remove it from the diocese’s canons. Moreover, other church rules appear to give broad authority to bishops, such as Episcopal Church Canon II.6 which authorizes a parish to encumber parish property with consent of the bishop.
After years of hearing courts say that dioceses and parishes never objected to the Dennis Canon before the current disputes arose, this opinion comes as a breath of fresh air, by turning the same point against ECUSA.

Judge Reed goes on to find triable issues of fact with respect to the manner in which Bishop Schofield gave his permission to the parishes, and with regard to the authority of the parish to amend its constitution and bylaws after the disaffiliation took place. Then she administers the coup de grâce to the Plaintiffs' chief argument:
Lastly, the court disagrees with Plaintiffs that Defendants’ actions were ineffective based solely upon the determination of the Episcopal Church as the highest ecclesiastical authority, and that the matter is now a non-justiciable fact. Clearly, the court is cognizant of the restrictions on civil courts interfering with internal affairs of religious organizations under the First and Fourteenth Amendments to the United States Constitution. In resolving property disputes, the court must take care not to adjudicate questions of religious doctrine. (Schofield v. Superior Court (2010) 190 Cal.App.4th 154.) 
However, under Schofield the trial court is to resolve a property dispute without reference to church doctrine if it can. In doing so, the court is to apply neutral principals of law which include the First Amendment rights of individuals and corporations; legal principles governing transfer of title; the law of trusts and corporations; general principles of corporate governance; and governing documents of the diocese and church, to the extent such documents establish trust relationships and specify corporate powers. (Schofield v. Superior Court, supra, 190 Cal. App. 4th at p. 163.) Here, given the numerous material issues and facts in dispute, it is apparent that resolution of the parties’ property dispute must be resolved at trial after considering the applicable documents, and not based solely upon the Episcopal Church’s determination.
This point is a huge one in favor of the Anglican diocese and its parishes. Ever since the Fifth District Court of Appeal handed down its decision in the Schofield case, ECUSA and its attorneys have been trying to make much of a single sentence in that opinion, when the Court stated: "The continuity of the diocese as an entity within the Episcopal Church is likewise a matter of ecclesiastical law, finally resolved, for civil law purposes, by the Episcopal church's recognition of Lamb as the bishop of that continuing entity." (Emphasis added.)

The technique of ECUSA's attorneys has been to try to get California judges to read that highlighted phrase as though it said: "as a civil entity under California law" -- i.e., to buy into the sham that the rump diocese is still the same legal entity under California law that voted to amend its Constitution in December 2007 and thus withdraw from the Episcopal Church (USA).

But that is not what the Court wrote. In fact it was responding to one of our arguments on behalf of Bishop Schofield, namely, that the rump diocese lacked the right to claim it was a genuine diocese of ECUSA, because it had not properly noticed its organizing convention, and because General Convention had never formally admitted it into union. Thus what the Court said was: "ECUSA may, as an ecclesiastical matter, decide to recognize whom it pleases as one of its dioceses, and that determination (of "ecclesiastical law", not the California civil law) was not open to question or attack in the civil courts."

And that is just how the Fresno Superior Court read the Schofield decision when it denied ECUSA's second motion for summary judgment last month.  Thus we now have the weight of a second California superior court judge behind the correct reading, which will not hurt Bishop Schofield one bit.

Finally, we should hear any day now from the Court of Appeal itself. Refusing to accept the decision of the Fresno trial court, ECUSA and its rump diocese filed a petition with the appellate court in which they asked it to say what it meant, and set the trial court straight. If, as usually happens in such interlocutory matters,  the appellate court declines to interfere, and allows the case to go to trial first,  then ECUSA will just have to wait until the eventual (and inevitable) appeal to see if it is reading the Schofield decision correctly or not.

Back in Visalia, we shall have to await the oral arguments tomorrow morning before Judge Reed to see whether or not she makes this tentative ruling her final one. I will report an update here when I have one.

Monday, June 10, 2013

Federal Judge Returns South Carolina Case to State Court

In a thoroughly researched and well-reasoned opinion released today, Senior District Judge C. Weston Houck of the United States District Court for the District of South Carolina, Charleston Division, ordered that the trademark infringement and declaratory relief action -- originally brought in State court by Bishop Mark Lawrence's Diocese and its parishes, but "removed" to federal court by the Episcopal Church in South Carolina -- be returned to State court for further adjudication. Judge Houck's order finds that there is no basis upon which any federal court could assert original jurisdiction over the claims asserted in the Lawrence complaint.

The order is a veritable model of how to proceed in analyzing and dissecting opposing arguments, and then applying the law to the facts so discerned. Judge Houck begins by describing the parties to the dispute: the plaintiff Episcopal Diocese of South Carolina, a non-profit religious corporation organized under South Carolina law in 1973; the plaintiff Trustees, also a non-profit corporation organized under South Carolina law in 1902 for the purpose of holding title to real property of the Diocese; and the thirty-five plaintiff parishes, each of which is a separate religious corporation under South Carolina law.

The defendants -- the ones who removed the suit to federal court -- are the Episcopal Church in South Carolina, an unincorporated association formed in 2013 out of the remnant parishes and congregations who wished to remain affiliated with the Episcopal Church (USA); and ECUSA (TEC) itself, an unincorporated association of member dioceses which is headquartered in New York. (Note that Judge Houck observes in his footnote number #2 that ECUSA is "hierarchical", as found in the case of Dixon v. Edwards, 290 F.3d 699, 716 (4th Cir. 2002).

Judge Houck is bound by that decision, delivered by the federal Circuit Court of Appeals to which his own court is subject. But the remark is irrelevant, because (1) Dixon v. Edwards involved a dispute between a bishop and a member of the clergy, not a dispute between a diocese and the national Church; (2) the case is being remanded to South Carolina State court, where the judges will follow the "neutral principles of law" approach adopted by the South Carolina Supreme Court in All Saints Waccamaw Parish v. Protestant Episcopal Church, 685 S.E.2d 163, 171 (S.C. 2009), under which the nature of the polity of ECUSA is irrelevant; and (3) Judge Houck himself recognizes in his own opinion that South Carolina courts are free so to proceed under the law as declared in Jones v. Wolf, 443 U.S. 595, 602 (1979). The Dixon case is not binding upon the South Carolina State courts, as it is upon Judge Houck; the State courts are bound by the decision of their own Supreme Court -- i.e., by All Saints Waccamaw. 

Having described the parties, Judge Houck then sets out the principal points in dispute between them, by citing to their own pleadings. The plaintiffs sought relief under State trademark law against the use by the defendants of the name "Episcopal Diocese of South Carolina", as well as declaratory relief that the Diocese and each of its parishes owned their respective properties free and clear of any claims by ECUSA.

The defendants counterclaimed that the plaintiff Diocese had no right to withdraw from ECUSA; that the national Church had made an "ecclesiastical determination" that its withdrawal was null and void, which determination was binding upon all civil courts; and that as a consequence of their taking part in the withdrawal, each of the persons holding office in the plaintiff diocese and parishes had forfeited their positions, which the remnant group, and only it, had the right to fill.

The defendants asserted that their claims depended on the "free exercise" clause of the First Amendment, which bars the civil courts from interfering with matters of ecclesiastical discipline, structure and polity, and so should be heard in federal court. More specifically, they argued that the plaintiffs' own complaint inevitably raised these First Amendment issues, so that it could have been brought originally in federal court.

In the next section of his order, Judge Houck sets out the law that is applicable to these various claims and assertions ("Standard of Review"). Citing another 4th Circuit case which is binding upon him, Judge Houck writes: "Thus, '[i]f a plaintiff can establish, without the resolution of an issue of federal law, all of the essential elements of his state law claim, then the claim does not necessarily depend on a question of federal law." To determine this question, the U.S. Supreme Court requires a federal court to which a state-law case has been removed to analyze whether or not the federal claim involved is "substantial", or is merely an incident to the dispute:
Under the substantial federal question doctrine, "federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress." ... If the defendant fails to demonstrate all four of these elements, removal is improper under this doctrine.
Now Judge Houck turns to a detailed analysis of the defendants' arguments to see how they fare under each of the four prongs of this test. He preliminarily disposes of the defendants' claims concerning the Lanham (federal trademark) Act, and observes that the plaintiffs had the absolute right to base their complaint upon State trademark law only. Thus the fact that there may be federal-law claims assertable in addition to the state-law ones pled in the complaint is irrelevant to the analysis.

And in a few thoroughly researched and well-written pages, Judge Houck now demonstrates how insubstantial are the defendants' federal-law arguments. He takes each of the four prongs one by one, and shows how the defendants' arguments fail to satisfy any of them. ((That is why Judge Houck's order would almost certainly be upheld if defendants were able to appeal from it (see below). Failing four out of four grounds of the test does not even make this a close case.)

In the end, Judge Houck says, defendants' arguments do turn upon the First Amendment, but only insofar as the First Amendment acts as a limitation upon the State courts. The First Amendment, in and of itself, does not enable any federal lawsuits based on the plaintiffs' or the defendants' allegations; no violations of its precepts have been alleged. Instead, the defendants were trying to use the First Amendment as a defense to advance their own cause, but that is not what creates federal-question jurisdiction in the federal courts:
ECSC relies on the First Amendment as a basis of its defense. In essence, ECSC claims the First Amendment prohibits a civil court from considering the underlying issue because it is purely ecclesiastical in nature. Similarly, in Burcaw v. Allegheny Wesleyan Methodist Connection, the defendants removed an action seeking a declaratory judgment regarding the control and disposition of church property. ... The defendants claimed the complaint raised purely ecclesiastical issues and, pursuant to the First Amendment, the court could not interfere in the dispute. ... Judge Gaughan of the Northern District of Ohio found the defendants' First Amendment argument "tantamount to a defense to the action." Id. The court held that it lacked jurisdiction because the "plaintiffs' complaint [did] not rest on any federal or constitutional claim ...." Id. Thus, the action was remanded.  
In the present action, the defendant's First Amendment argument is similarly "tantamount to a defense." The First Amendment was not pled in the complaint nor was it addressed in the answers or counterclaims. The First Amendment was initially raised in ECSC's notice of removal as an anticipatory dispute between the parties. ... Thus, the Court lacks jurisdiction over this matter.
This is the way that all court decisions should proceed: describe the facts and the respective claims, state the applicable law, and then follow that law and apply it to the facts of the case. Based on just my cursory review of Judge Houck's order, I would venture to say that it is impeccable, and not likely at all to be overturned by any higher court. (Besides, a federal statute provides that decisions to remand are not subject to appellate review. The Supreme Court has recognized a limited exception to that statute, but it would not apply to Judge Houck's decision.)

So where does that leave the defendants? Back in State court, where there is already an injunction entered against them. Look for them now to bring a motion to try to lift that injunction, by raising all the First Amendment defenses they tried out before Judge Houck.

But once again, any judge may turn to what Judge Houck has already noted about the status of those arguments in the South Carolina state courts:
The United States Supreme Court has expressly approved two methods for these types of disputes, and has granted the states the power to choose the method it will apply. All Saints Parish, 685 S.E.2d at 171. The First Amendment provides guidance for methods of constitutionally consistent legal application, not a basis for a direct claim or a direct cause of action arising under federal law. ...  
ECSC argues that whether the First Amendment permits the plaintiffs "to employ the power ofthe judiciary to abnegate the determinations of Church authorities on matters of Church governance and doctrine" is "a matter of immeasurable importance [n]ot merely to millions of Episcopalians across the country but to the free exercise of religion in general."  
... The United States Supreme Court in Jones, 443 U.S. 595, and Milivojevich, 426 U.S. 696, has defined approaches that state courts may apply in determining religious disputes without violating the First Amendment. The argument that it is substantial to the federal system is undone by the United States Supreme Court yielding the right to choose an approved approach to church dispute resolution to the states. Courts have interpreted the First Amendment to serve as a safeguard or a limitation on a civil court's authority, to ensure the "free exercise of religion" is not violated by undue consideration of ecclesiastical matters. Therefore, the issue raised by ECSC is inapplicable as the "serious federal interests" have already been addressed by state and federal systems.
Or, in other words: not even a "hierarchical" Church may require a State to refrain from using the "neutral principles of law" approach, and to defer to it on every point just because of its "hierarchical" nature. The First Amendment may limit how far civil courts may go into questions involving ecclesiastical discipline and polity, but where they are able to proceed by using the same principles of civil law that apply to every other party in a property dispute, the United States Supreme Court has given State courts its blessing in so proceeding to decide church property cases, as well.

Look for Judge Houck shortly to enter another order holding Bishop vonRosenberg's individual Lanham Act case against Bishop Lawrence in abeyance, pending the outcome of the lawsuit in the State courts.  It will take a few weeks for the federal court to return the files to the Circuit Court of Dorchester County. But as soon as that court has them, it can proceed to resolve the matter under the "neutral principles" approach laid down in the All Saints Waccamaw case.

Saturday, June 8, 2013

Remnant Quincy Group to Be Absorbed by Diocese of Chicago

At dual conventions held today in Chicago and Peoria, the Episcopal Diocese of Chicago and the remnant Episcopalians in Quincy (who called themselves a "diocese" for purposes of the ongoing litigation over whether the actual Diocese of Quincy could leave the Episcopal Church [USA]) have voted to combine into a single Diocese of Chicago. The actual merger will not take place until General Convention meets, probably two years from now, to approve it pursuant to Article V of the Constitution.

(Curmudgeon's Note: See what a wonderful "hierarchy" ECUSA claims to be! It is supposedly "governed and ruled" by a body which meets together once every three years for just 8 days, and then dissolves -- never to assemble again. Eight days out of 365 x 3 = 1,095 days (1,096 if one year is a leap year), or less than 1% of the time (to be exact, 0.73%). It's rather like Scotland saying it was "governed" by the village of Brigadoon.)

[UPDATE 06/08/2013: Since my writing the above, The Living Church has put up an article which references a "background document" given to the deputies at the convention of the Diocese of Chicago.   And according to that document, the merger will not have to wait for General Convention's next session in 2015. Instead, it asserts that a majority of the diocesan bishops and standing committees can give their assent to the union, and that is all the approval that will be necessary.

Needless to say, I was surprised by this claim that Canon I.10.6 (which allows for such an approval) would apply to this situation. That Canon speaks of a reunion of dioceses that were previously a single entity, but which had split apart, and now wanted to come together again. Article V of the Constitution (linked above) covers the case of the joining of two existing dioceses to make a single one -- and a provision of the Constitution trumps a provision in the Canons.

Upon further reflection, however, I realized that applying the Canon rather than the Constitution is just par for ECUSA's course. For the ongoing Quincy litigation, ECUSA must maintain the fiction that its current Potemkin diocese is the same entity whose disgruntled and unenlightened deputies voted overwhelmingly but illegally to amend their governing documents so as no longer to be a part of ECUSA. In 815's view -- as advanced at the recent trial -- those votes were invalid, and hence cannot be recognized as separating the diocese from the Church. (Never mind that ECUSA admitted at the trial that there is no language in its Constitution or Canons which renders the votes invalid; it's just that ECUSA has "determined" ex post facto that they were -- don't you see?)

Therefore (in 815's view), the "Diocese of Quincy" never left; it just had to be "reorganized" from the ground up, with a new bishop and a new standing committee. And so when that "continuing" entity votes to recombine with the Diocese of Chicago, it really is a "reunion" of two dioceses that were formerly one.

Except that when they were both "one" diocese -- to accept their premise for the sake of the argument -- that single diocese also consisted of what is now the Diocese of Springfield. In other words, there was never a time when just the now Diocese of Chicago and the "Diocese of Quincy" were one and the same diocese -- even under their convenient manipulation of the facts for litigation purposes.

But awareness of that defect in their little scheme to rejoin will never hinder or delay the process for a single second. Nevertheless, this is such an important objection to make to yet another of 815's decisions to let the needs of current litigation trump everything else that defines the Church -- whether it be its Constitution, or Canons, or the Book of Common Prayer, or Holy Eucharist -- that it is worthy of a separate post. So stay tuned.]

* * *

The fate of the Potemkin "Diocese of Quincy" foreshadows what will probably happen to all of the other Potemkin villages currently being propped up by the coffers of ECUSA, except for Pittsburgh and possibly Fort Worth (depending on how the Texas Supreme Court rules -- any day now, by the way). The remnant Episcopalians in San Joaquin, Quincy and South Carolina are currently each governed by a part-time, provisional bishop, previously retired ("resigned"), who spends only a fraction of his time visiting the parishes and handling administrative matters.

The oldest such group is in the geographical area of the former Diocese of San Joaquin, spread over fourteen California counties in the southern Central Valley. The Presiding Bishop called its initial convention in April 2008 so that it could immediately file a lawsuit against Bishop Schofield (but not naming his Anglican Diocese -- remember, ECUSA cannot recognize the right of a diocese to withdraw, without forfeiting its claims to the withdrawing diocese's property and bank accounts).

After five years, the group's lawsuit against Bishop Schofield has yet to go to trial, while it has accepted loans and subsidies from ECUSA amounting to about $1.5 million thus far. Meanwhile, its ASA dropped since 2001 by nearly 80%, and has remained flat at just 943 for 2010 and 2011. Worse still, its number of baptized members is declining steadily also, so that there are fewer and fewer replacements to fill the pews.

With an annual budget in which legal expenses must dwarf all other items, San Joaquin has no resources from which to repay its loans from the national Church, and if it does not prevail in its lawsuit, 815 will have to write off what it is owed. Its average pledge was just under $200 per month in 2011, and it had only 628 pledging units.

The situation in Quincy after that Diocese withdrew in 2008 is even more tenuous, because Quincy was never a large diocese from the outset. Its ASA dropped from 1,275 in 2001 to just 340 in 2011; from 2010 to 2011 alone, there was a 6.3% decline. It has not received anywhere near as much in subsidies as has San Joaquin, but it has never been self-sustaining since 2008. Its current average pledge is even lower than San Joaquin's, and it has just 251 pledging units.

The press release from the Diocese of Chicago says nothing about assuming Quincy's liabilities, but in any event it would not do so until after General Convention approves the merger in the summer of 2015. One wonders also what will happen to the remnant group's role in the pending lawsuit, assuming it is still in the Illinois courts at that time. (Post-trial briefing was just completed this week, and a decision could be expected by August, but there will almost certainly be an appeal by whichever side loses. Any such appeal could easily drag on past 2015.)

If the lawsuit is still pending in the summer of 2015, the successor Diocese of Chicago will have to be substituted in place of the remnant group for the suit to continue. And that might introduce some entirely new and novel legal questions into the lawsuit. For instance, what is the legal right under Illinois law of an unincorporated association's members to assign their claims to property and assets when that unincorporated association dissolves and merges into a much larger association? The status of those members as belonging to a unique group organized for purposes of maintaining a lawsuit will have vanished, and the Diocese of Chicago will have no such claims prior to the merger. To whom will those claims be assigned, and can they even be assigned?

This is what happens when an organization that calls itself a church refuses to adhere to the Christian path, and instead seeks to gain temporary advantages through litigation while failing abysmally to carry out its mission. Indeed, an outsider might even conclude, from the fact that by 2015 ECUSA may have spent as much as its entire current yearly budget just on litigation, that ECUSA's mission is litigation -- nothing more, nothing less.

Now that briefing has concluded, I will be able to report more details about the Quincy trial in forthcoming posts.

Thursday, June 6, 2013

Decision Time in South Carolina

Today is the day that Senior Federal District Judge Houck hears oral arguments from counsel on the motion by Bishop Mark Lawrence, his Episcopal Diocese of South Carolina and more than three dozen parishes to remand ("send back") the lawsuit they began last January to South Carolina's Circuit Court in Dorchester County. I reviewed the history of this increasingly complex litigation in this post, and will not repeat it here.

Essentially, what is at issue on the motion to remand is whether or not the Court can fairly read the Lawrence State court complaint to state a "claim or controversy" under the laws of the United States, so that the case could have been brought initially in the federal Court. One would think that a complaint based only upon State trademark law would be left to the State courts to decide, but ECUSA and its Potemkin diocese saw things differently. ECUSA has not done well in the South Carolina State courts, and so they wanted desperately to have the federal courts take jurisdiction of the dispute over who owns the rights to the name "Episcopal Diocese of South Carolina."

If the judge decides to keep the case in his court, then it will be consolidated with the federal lawsuit begun by Bishop vonRosenberg against Mark Lawrence personally, under the federal trademark law (called the "Lanham Act"). But if he does not -- if Judge Houck sends Bishop Lawrence's case back to State court, then look for him to stay the Lanham Act lawsuit until the State court resolves the trademark issues first (since that lawsuit was filed first).

I will report on the Judge's decision once he makes it. In the meantime, if any reader attends the hearing today, feel free to record your impressions of it in the comments. Also, those in South Carolina and elsewhere may find useful the prayer circulated today by the Very Rev. John Barr.

[UPDATE 06/05/2013: I am told that the hearing was brief, and was over in about forty minutes. Judge Houck was noncommittal, asked few questions, and mostly listened to the arguments. At the conclusion, he remarked that he had already been at work on the matter, and expected to get a decision on file "within a week."]