Friday, August 30, 2013

Bishop Iker and Church of the Good Shepherd Win in Texas

Today the Texas Supreme Court handed down decisions in the two ECUSA cases pending before it: No. 11-0265, Episcopal Diocese of Fort Worth, et al. v. The Episcopal Church, et al.; and No. 11-0332, Masterson v. Diocese of Northwest Texas. In the first case, the Court sided with Bishop Iker's Diocese by a closely split vote of 5-4, reversed the summary judgment of Circuit Judge John Chupp which had awarded all of the property and assets of Bishop Iker's Diocese to the Episcopal Church and its rump diocese, and sent the case back to the trial court. The majority held that the trial court had improperly failed to apply a "neutral principles of law" analysis to the issues. The four dissenters did not disagree with that result, but instead believed that the Court lacked jurisdiction to hear a direct appeal from the trial court's judgment in the case.

In the second case, the Court by a vote of 7-2 reversed the Court of Appeals' decision requiring the Church of the Good Shepherd in San Angelo to turn over its building and all other assets to the Diocese of Northwest Texas. The Court definitively ruled that all Texas courts must follow "neutral principles of law" (rather than deferring to an ecclesiastical hierarchy), and that based on such an analysis, the Dennis Canon was not effective under Texas law (or that if it were effective to create a trust, the trust was not expressly irrevocable, and so could be revoked by the parish in question).

The two decisions establish "neutral principles of law" as the governing approach to church property disputes in Texas courts. (The Texas Supreme Court had last addressed the issue in 1909, seven decades before the U.S. Supreme Court authorized "neutral principles" in Jones v. Wolf, 443 U.S. 595 (1979).) And under that approach, as we have seen happen time and again more recently, courts are coming to realize that ECUSA's case has no neutral principles going for it.

ECUSA loses under a true "neutral principles" approach because it ignores the Statute of Frauds in its Dennis Canon, and proclaims a trust on other peoples' property of which it makes itself the beneficiary. And in the Diocese cases, where ECUSA does not even have the Dennis Canon available to it, it simply waves its hands and claims to have made an "ecclesiastical determination" that its Dioceses cannot withdraw from the denomination unilaterally, and that even if they could, the Diocese impliedly agreed to hold all of its property in trust for the denomination, and so must relinquish control of that property upon leaving.

This latter fact -- that there was a trust argument also made in Bishop Iker's case -- explains the unusual divisions among the Justices. The two dissenters in Masterson were Justice Lehrmann and Chief Justice Jefferson. They would have deferred to ECUSA's determinations even under a "neutral principles" approach, and have declined, based on the First Amendment, to let Texas corporate law overrule those determinations. For them, the Dennis Canon had "ecclesiastical" force, to which the Texas Courts had to defer. (Query: how does such "deference" square with "neutral principles", when only certain types of denominations qualify for "deference"?)

The four dissenters in Bishop Iker's case were Justices Willett, Lehrmann, Boyd and Devine. But as I noted, their dissent was to the Court's taking jurisdiction of the appeal, and not to the merits.

It is Chief Justice Jefferson who made the majority in Bishop Iker's case -- while willing to defer to ECUSA in disputes between a parish and a diocese, he did not see the basis for any such deference as between dioceses and ECUSA -- at least, on the record as developed below. Undoubtedly he joined with the majority to send the case back for further proceedings, and would withhold further judgment on the merits until after there has been a full trial and a normal appeal. (He expressly did not join in Parts IV.B and IV.C of the majority's opinion, which provides guidance for the trial court on certain issues which will be faced at the trial.)

One might think, given this split, that the "guidance" offered in those latter two sections of the majority's opinion is scarcely guidance at all, because without Chief Justice Jefferson, what is written has the backing of just four of the nine Justices. But that reasoning does not take into account the decision by seven of the Justices in the Masterson case.

In Masterson, the seven justices decided pretty much the same corporate law issues on which the four Justices provide "guidance" in the case of Bishop Iker's diocese. Thus, Texas law will control the issue of who were the trustees of the Fort Worth diocesan corporation on the relevant dates when crucial votes were taken. And that should bode very well for Bishop Iker's chances on remand.

Likewise, the issues of title are to be resolved by examining the various deeds under Texas secular law -- and that, too, should work in Bishop Iker's favor. Title to all of the parish properties is held by the diocesan corporation. Thus if Bishop Iker's trustees are the proper trustees in office, the property will follow the corporation.

I may have more to say after I finish a full review of the opinions, and may change some points noted above, but on the whole, these two decisions score a great victory for neutral principles in general, and for ECUSA dissenters in particular.

Thursday, August 29, 2013

Federal Court Says Pastor May Be Sued for Aiding Anti-Gay Agenda in Uganda

In a decision that is completely unprecedented under American law, Judge Michael A. Ponsor of the Federal Distict Court for the Springfield Division of Massachusetts has denied a motion to dismiss a complaint brought against Pastor Scott Lively by Sexual Minorities Uganda, a foreign association of LGBTIs based in Kampala. The attorneys for the plaintiff are being furnished, presumably gratis, by the Center for Constitutional Rights in New York City, an organization which boasts that it "use[s] daring and innovative legal strategies which have produced many important precedents. CCR is often 'ahead of the curve' in both identifying a problem and in suggesting novel or radical legal responses which, over time, become accepted and respected precedents and theories." (CCR acknowledges receiving substantial financial support from far left-wing donors such as George Soros' Open Society Institute and the Bertha Foundation.)

The novelty and extreme reaching of Judge Ponsor's decision is difficult to grasp and appreciate on first reading through its 79 pages. It reads on the surface like a normal judicial decision, citing authorities and precedent to support what it purports to decide. What is most glaring about its conclusions of law, however, is what the decision does not spell out it is doing:
  • Judge Ponsor relies upon the Rome Statute of the International Criminal Court ("ICC") for his definitions of "persecution" and "crime against humanity", which the complaint alleges Pastor Lively aided and abetted by his support for the anti-gay actions and agenda of members of Uganda's government. However, the United States has never ratified the Rome Statute (President Clinton signed it, but never submitted it to the Senate for ratification), and does not recognize it as binding law. (The Obama Administration cooperates with the ICC on specific prosecutions which it deems advance its interest.) 

  • Judge Ponsor acknowledges that no current international treaty or compact, including the Rome Statute, makes discrimination against persons on account of their sexual orientation expressly subject to its terms, but finds wiggle room in various "savings clauses" of those documents (which allow, e.g., "other grounds that are universally recognized as impermissible under international law") for his holding that such discrimination in Pastor Lively's case by Ugandans against Ugandans could amount to a "crime against humanity".  

  • Judge Ponsor holds that Pastor Lively, who visited Uganda twice in 2002 and then not again until 2009, could be regarded as a "co-conspirator" with a member of the Ugandan legislature who introduced proposed legislation against homosexual behavior (the bill never passed). The opinion recognizes that had Pastor Lively been instrumental in proposing legislation to the Massachusetts legislature, he would have been protected by the First Amendment right to petition his government -- but since he advocated for the legislation in Uganda, he can be charged with "aiding and abetting crimes against humanity."

  • Judge Ponsor also holds that Pastor Lively may be held responsible in Massachusetts for the alleged anti-gay sentiment aroused in Uganda by his authorship of two books published in the United States in 2007 and 2009 and describing and attacking the gay rights agenda in the United States, even though the plaintiff organization could not allege that any Ugandan police or government officials who implemented that country's own anti-gay agenda against its members had actually read either book.

  • In a final reach, Judge Ponsor declines to apply Ugandan law to the offenses of civil conspiracy and negligence alleged in the complaint -- because Uganda does not recognize the tort of civil conspiracy, while Massachusetts does, and because the concept of "duty of care" under Ugandan negligence law was unclear. Recognizing that the plaintiff could not sue Pastor Lively in Uganda for these offenses, Judge Ponsor throws open the doors of his courtroom so that the plaintiff will have a forum for its grievances.
This decision, of course, is not the final word in Pastor Lively's case; it finds only that the plaintiff has stated a claim under international and Massachusetts law, so that its case may proceed to the discovery stage. But it serves as a harbinger of the activist agenda that gradually is using our judicial system (which is all too eager, in many cases, to be so used) to achieve the laws and rights it is unable to enact through the ballot box.

There is much more information about the parties and the court proceedings to date at this page, and you can download all of the important documents to date at this page. Further background is in the articles here, here and here. The New York Times ran an article in January 2010 about the conflicts caused by the proposed Ugandan legislation and its supporters from America which you may read here.    

How to Screw up the World (Again)

First, take a tense situation, and lay down a marker -- make a demand that dares the addressee to defy it. (Oh, yes, and be sure you have an authoritative report to back it up. If they try to say you have no evidence, you will show them who's lying.)

After all, you head up a country that was once great and powerful, even though you may have presided over its decline of late. Still, you believe in the strategy of the environment you grew up in: if your opponent brings a knife to a fight, you bring a gun. Given your reputation as you perceive it, no puny little dictator would think of calling your marker.

Form an alliance with countries who egg you on, despite their having no dog in the fight. And ignore the warnings from those who claim to be allies of your opponent -- after all, they would never intervene in such a minor dust-up. No, they are bluffing, and this is poker. A single attack on a two-bit country could never lead to a world-wide war.

Above all, assert your supreme powers as Commander-in-Chief of your armed forces. The decision to attack, after all, is entirely up to you, since you (and not your country's elected representatives) laid down the marker.

Never mind having a clear goal or objective beforehand. You simply want to punish the upstart who dares to defy you in front of the whole world. Your opponent's regime may fall as a result of your attack; or again, it may not. At all events, you agree with this summary of another decision to attack without a plan by an earlier administration:
It may fail, and we cannot estimate the odds of success with any accuracy -- they may be somewhere between 25% and 75%. What we can say is that even if it fails, the policy will be worth it. At a minimum it will damp down the charge that we did not do all that we could have done, and this charge will be important in many countries, including our own. Beyond that, a reprisal policy to the extent that it demonstrates U.S. willingness to employ this new norm in counterinsurgency will set a higher price for the future upon all adventures of guerrilla warfare, and it should therefore somewhat increase our ability to deter such adventures.
Oh, but you left out Secretary Bundy's final sentence from that quote: "We must recognize, however, that that ability will be gravely weakened if there is failure for any reason in Vietnam ...". And there was a failure in Vietnam, wasn't there? It was the failure of a leader-made war to get the country united behind it -- again, because there was no definite plan to explain, or to ask the people to support. The leaders were interested only in punishment ("reprisal"), not (at least at the very first) in any wider goal.

And by all means, do not let contemporary voices deter you from your course -- after all, what do they know? You are the leader; you laid down the marker; that pipsqueak defied it, and now it's payback time -- Chicago style. (Oh, and don't be bothered by those pesky voices from the past, either.) You said it all when you came into office: can you be at fault if subsequent events have forced you to think differently?

No, perish the thought. You're in charge, and have been from day one.

And that's why you can cut that damned Assad some slack. You'll just rough him up a bit, let him have a taste of good old alpha-male whoop-ass -- something that offers "a level of intensity 'just muscular enough not to get mocked', but not so devastating that it would prompt a response from Syrian allies Iran and Russia." You want it to be "just enough to mean something, just enough to be more than symbolic."

When you take it all on yourself -- when you ignore the laws and make it all about you -- it can get a bit lonely up there, can't it? The whole world watching you, to see what you (alone) will do? Kind of empowering, isn't it?

Then again, you've never wanted it to be any other way.

Friday, August 23, 2013

Court Dismisses Federal Trademark Action against Bishop Lawrence

Today Senior Judge C. Weston Houck of the Federal District Court in the District of South Carolina entered an order dismissing "without prejudice" the federal trademark infringement lawsuit filed in that court by Provisional Bishop vonRosenberg of the "Episcopal Church in South Carolina" against Bishop Mark Lawrence of the independent Episcopal Diocese of South Carolina. The dismissal "without prejudice" means that the Court declined to rule on any of the merits of Bishop vonRosenberg's claims, so as not to interfere with the State Court proceeding involving those same issues which is currently before Judge Diane Goodstein in the Court of Common Pleas for the First Judicial Circuit in Dorchester County, South Carolina (see the footnote on page 22 of the Order).

Should the State court proceedings not fully and finally resolve all of the trademark issues between Bishop vonRosenberg and Bishop Lawrence (and there is no reason to conceive why they should not so resolve them), then the dismissal without prejudice leaves Bishop vonRosenberg theoretically free to refile his Lanham Act (federal trademark) claims in the federal district court. However, if the State court proceedings result in a litigated final judgment, then that judgment would operate to bar any further such filings by Bishop von Rosenberg in any court.

Bishop vonRosenberg had asked for the court to enter a preliminary injunction in his favor, while conceding that he himself was already subject to a State-court preliminary injunction which barred him from using the trademarks of the Diocese of South Carolina. The court also had before it Bishop Lawrence's motion to dismiss the federal action, and Judge Houck chose to grant the motion to dismiss rather than get entangled with the State court proceedings by issuing any injunction of his own.

Judge Houck also points out that while Bishop vonRosenberg is not a named party to the State court action, ECUSA itself is a counterclaimant, and its counterclaim there raises the exact same federal trademark claims which Bishop vonRosenberg tried to assert in federal court. Since those claims can be fully adjudicated by the State court (even though they are brought under a federal statute), there is no likelihood that the State court action will not fully and finally resolve them. Thus, there was no need for the federal court to retain jurisdiction, and Judge Houck granted Bishop Lawrence's motion to dismiss.

The opinion, once again, shows Judge Houck's thorough and careful approach to deciding just as much as he needs to -- and no more -- in order to arrive at his decision. It is replete with the finer and more technical points of federal declaratory judgment law as settled in the Fourth Circuit (the federal appellate circuit which includes the State of South Carolina, and which is headquartered in Richmond, Virginia). Because of his care in crafting his order, and also because the federal courts have wide discretion in deciding whether to entertain suits for a declaratory judgment, there is a near-zero probability that ECUSA or Bishop vonRosenberg could successfully appeal the dismissal.

The opinion also demonstrates the very substantial legal issues which are raised by ECUSA's now-standard approach to these cases of withdrawing dioceses (thus far: San Joaquin, Fort Worth, Pittsburgh, and Quincy). Judge Houck fully appreciates that there is only one corporate Diocese under South Carolina law at this point, and that ECUSA claims ownership and control of it by virtue of its "hierarchical" polity. (Score one more meaningless point for ECUSA to quote for future court cases: on page 3 of his Order (footnote 5), Judge Houck acknowledges the Fourth Circuit precedent which binds him to repeat the mantra that ECUSA is a "hierarchy". But the panel which decided that case, Dixon v. Edwards, 290 F.3d 699, 716 (4th Cir. 2002) made that statement as dictum in reaching its conclusion that the parish in Accokeek, Maryland had improperly denied (now deceased) Bishop Jane Dixon personally rights which she enjoyed in her capacity as bishop -- to visit the parish, and to withhold her approval of any new rector, etc. The nature of the structure between ECUSA and its member dioceses was not even remotely at issue in that case, and so the panel's language, being unnecessary to its decision, does not in fact bind any lower court. Perhaps Judge Houck was just being politely deferential to his judicial superiors.)

There is currently only one incorporated Diocese of South Carolina because ECUSA and its proxy ECSC refuse to incorporate one. To do so would give away their claim that member dioceses have no right unilaterally to withdraw from the denomination. So they have made the bed in which Judge Houck leaves them to lie. Their entire chance of success depends on proving to Judge Goodstein that the Constitution and Canons of ECUSA somehow contain language that denies to member dioceses what effectively is their right under the freedom of association guaranteed to all (including both corporations and unincorporated associations) by the First Amendment.

To prove that the DSC ever waived its First Amendment right would require quite a showing -- that it knowingly and voluntarily gave up that right, as documented in some kind of writing, or legislative action by General Convention in which the DSC joined. After years of encountering the kinds of evidence ECUSA throws out to support such a claim indirectly, I am fairly confident that it has nothing directly on point. So as I say, it will have a hard uphill slog in convincing Judge Goodstein that member dioceses are prohibited from withdrawing on their own -- especially with the precedent of the All Saints Waccamaw decision, which guides all inferior South Carolina courts on the rights of religious corporations under State law.

Judge Houck must have been happy to leave such an intricate ecclesiastical dispute for Judge Goodstein. His plate is now empty of all ECUSA matters, and he can hope to spend his retirement years in peace and quiet.

[UPDATE 08/24/2013: At the request of commenter Tom (below), I add some remarks about Judge Houck's standing-to-sue analysis. Standing is an essential requirement for every plaintiff who brings a lawsuit -- if a party does not have standing to sue, then that party may not sue in court -- period. However, there are two kinds of "standing" in federal court cases: first, the constitutional requirement of Art. III, which extends the federal judicial power only to "cases and controversies"; and second, a judge-made doctrine called "prudential standing", which seeks to keep the court from delving into matters that involve persons not before it, or cases that will not lend themselves to complete relief in the framework of the plaintiff's lawsuit.

The difference between them is this: if the plaintiff does not have standing to sue in the constitutional sense, then there is no genuine "case or controversy" for the court to decide. (Think, e.g., of the various attempts over the years to sue God in court for various natural disasters. Not only could the court never acquire personal jurisdiction over such a defendant, so that His side of the matter could never be represented; there would be an insurmountable problem for the plaintiff to prove that the defendant actually caused his injuries.) Without a genuine case or controversy before it, the court lacks subject-matter jurisdiction, and must dismiss the action.

Prudential standing, on the other hand, does not challenge the court's subject-matter jurisdiction -- there may well be a genuine controversy presented -- but it requires the court decide that the plaintiff's case is one that it would be prudent for it to accept, given the limitations of what courts can do.

Bishop Lawrence had attacked the standing of Bishop vonRosenberg in his motion to dismiss -- on both constitutional and prudential grounds. With regard to the former, he first argued that the corporate diocese, which had registered the marks at issue, had not authorized Bishop vonRosenberg to sue for those trademarks, and so he was not the proper party to bring the action. (Moreover, the Diocese was already suing in State court, and had a preliminary injunction against Bishop vonRosenberg to keep him from using the very marks he was asking the federal court to say that he was authorized to use.)

Next, Bishop Lawrence argued that Bishop vonRosenberg could not prove that he individually  had suffered any actual injury in fact -- i.e., that his claims of "injury" were all speculative and hypothetical -- because, again, he had no legitimate stake in the marks at issue, and is under an order not to use them.

How did Judge Houck deal with these arguments? In his characteristically thorough and methodical way. He acknowledged that Bishop vonRosenberg's right to control the assets of the corporate diocese under South Carolina law was at issue in State court (Order, p. 7), but he considered himself bound, under the First Amendment, not to question Bishop vonRosenberg's ecclesiastical status as the duly elected head of a religious organization. And, relying on Dixon v. Edwards (see above), which held that a bishop of a church had standing to sue for injury to, or denial of, rights pertaining to his office, Judge Houck held that Bishop vonRosenberg had a sufficient ecclesiastical stake in the controversy to satisfy the first element of constitutional standing (id. at 8). And given that finding, he had no difficulty in satisfying the other two elements of constitutional standing (causation and amenability to relief), as well (id. at 8-9) -- assuming Bishop vonRosenberg could show that he was indeed entitled to control of the corporate diocese.

Judge Houck's examination of "prudential standing" (pp. 9-11) raises a very interesting point for purposes of federal law. Because the Lanham (federal trademark) Act was central to the case, other courts had developed the doctrine that to have prudential standing under that Act, the plaintiff must be "engaged in commercial activity." (That is the third element of prudential standing; Judge Houck found that Bishop vonRosenberg easily satisfied the first two: he was not asserting the legal rights of a third party, or seeking adjudication of abstract questions or of a generalized grievance [id. at 10].)

But what does it mean to say that churches are engaged in "commercial activity"? (Think of Jesus' warning about nor trying to serve both God and Mammon.) It would seem to demean the entire spiritual purpose and character of a religious denomination to subject it to a criterion that measures the degree to which its pursuits are "commercial."

And here, Judge Houck took refuge in a prior decision of his Fourth Circuit, which had long ago settled this issue: see his quotation from Purcell v. Summers (4th Cir. 1944) 145 F.2d 979, 985, in note 9 on p.11. So in the eyes of the (federal) courts, at any rate, operating a church is just like operating a business: you have competition, and you have to make a "profit." I think that such a view underscores St. Paul's warning about taking Christian controversies into the civil courts, and demonstrates why our Presiding Bishop cannot heed his warning: she thinks just as the civil courts do.

So, by finding that Bishop vonRosenberg and his ECSC are engaged in a commercial activity, and seek to better their competition and make more money, Judge Houck completed his rejection of each of Bishop Lawrence's standing arguments. And somehow, considering how Bishop vonRosenberg and his group have conducted themselves to date, I see that finding as most appropriate.

Note, however, that their convincing the court that they had "standing" did not mean that they prevailed on the motion to dismiss. Because Judge Houck could see that the State court action offered a far better arena in which to resolve all the pending disputes between the various parties, he was happy to dismiss the federal action by exercising his wide discretion under the Declaratory Judgment Act.]

Wednesday, August 21, 2013

What Will Yours Be?

Last Sunday, Pope Francis addressed the worsening situation of Christians in Egypt. Reiterating a point made somewhat differently by his predecessor, he said: “The word of the Gospel does not authorize the use of force to spread the faith. It is ‘just the opposite: the true strength of the Christian is the power of truth and love, which leads to the renunciation of all violence.’ Faith and violence are incompatible.”

This restatement of Benedict XVI’s indirect criticism of militant Islam is also, of course, an indictment of the violence done through the ages in the name of the Church Catholic. The Pope felt it incumbent to expound on one of the passages from Sunday’s liturgy, Luke 12:51-53:
Suppose ye that I am come to give peace on earth? I tell you, Nay; but rather division: For from henceforth there shall be five in one house divided, three against two, and two against three. The father shall be divided against the son, and the son against the father; the mother against the daughter, and the daughter against the mother; the mother in law against her daughter in law, and the daughter in law against her mother in law.
And just what did Jesus mean by that? the Pope asked. “It means that faith is not something decorative, or ornamental; it is not there to decorate your life with a little ‘religion.’” No: faith, said Pope Francis, involves choosing God as the center of one’s life. He added that God is not empty, he is not neutral, God is love.

“Jesus,” continued Pope Francis, “does not want to divide people from each other, on the contrary, Jesus is our peace. But he lays down the criterion: live for oneself, or live for God.”

This is indeed the choice we all face, ever since Jesus walked the earth and brought his message. That message has divided the peoples of the earth, exactly as Jesus foretold: “father against son, son against father, mother against daughter, daughter against mother ...”. And in its name, man has engendered wars and much violence.

Violence nevertheless remains incompatible with faith in Jesus Christ, who told believers to “turn the other cheek” (exactly as He did when scourged, at Pilate’s command). “Those who live by the sword will die by the sword.”

But atheists and unbelievers will counter the Pope’s homily with examples drawn from the Jewish Bible, the “Old Testament.” There God is often in the middle of it, raining death and destruction down upon the enemies of Israel, against the inhabitants of Sodom and Gomorrah; indeed, against the whole world -- except for Noah and his family.

Such a charge, however, would miss the Pope’s chief point. He said that faith in Christ was incompatible with violence, not that God abstains from violence. “‘Vengeance is mine,’ says the Lord.” (See Heb. 10:30.) After all, what do you think people will say about the enormities of violence and destruction that Revelation tells us will occur at the Second Coming? (Hint: it won’t matter – it will be too late.)

Marcion, too, missed the same point, when he tried to excise the God of the Hebrew Bible from his own version. Faith in Jesus Christ came in with the New Testament and the Resurrection. That was the event that signaled the change in man’s relation to God.

No longer would man strive to attain righteousness through works of the law – Jesus’ sacrifice had bridged that gap for all who accepted Him as their Savior. But at the same time, Jesus’ sacrifice meant that the choice for humans – God /Jesus or man – was now more stark than it ever had been before. And that is the reality that underlies the Pope’s little homily last Sunday.  

We must realize that man’s awareness and learned abilities (what many refer to as culture) are not constant over time. (And I by no means intend to imply that man’s culture, on the whole, has “progressed.” There are a lot of 20th-century examples to refute that notion, and the jury is still out on whether man will escape self-annihilation. My point is that man’s cultural abilities are different today from what they were 2,000 or 3,000 years ago -- but man remains fallen, and with a constant tendency to place himself athwart God's will.)

This undeniable fact requires that we avoid all anachronistic approaches to understanding God’s timeline through the record of His revelations to man. In a different sense from its actually being God's Word to man, the Bible may also be viewed as a record of man’s gradually increasing abilities to perceive, receive, and transmit that constant and unchanging Word. When people say “The Bible has changed from when it was written,” what they really are saying is that man has changed since the Bible was first written down.

This same undeniable fact puts a great obligation upon us alive today not to confound the Message – God’s unchanging and eternally abiding Truth – with the medium by which that Truth comes down to us. That, again, was Marcion’s error, and it is the error of all who perceive the Hebrew God as “incompatible” with the God whom Jesus made known to us.

The Word itself never changes; man’s abilities to perceive, receive, and transmit it to others, and to later generations, do – and they differ from generation to generation.

Thus, many of the things Jesus said to his contemporaries sounded very strange (and some still do today, as G.K. Chesterton observed in The Everlasting Man). Jews in Pharaoh’s day would no more have understood what Jesus later said about what defiles a man (Mk 7:19-23) than many people today do.

Through the middle ages and the Renaissance, man’s cultural abilities and awareness expanded (not necessarily “progressed” – see above), and the Church flourished in tandem.

However, as man’s abilities and awareness expanded, Satan appears to have adapted his methods to those changes, as well. He went from demonic possession of individuals (e.g., Mk 1:32-33) to control and management of entire memes and societies, e.g., via the “Enlightenment” (a misnomer if there ever was one – but that is another story).

The point here is this: God's message to man remains constant and unchanging; and Satan's objectives likewise are unchanging. What changes is man -- but only in certain superficial ways involving language and culture. Man's tendency to sin -- his fallenness -- does not change. And because that does not change, while his estimation of his progress, and control over nature, does change, then man -- to the degree he thinks himself more sophisticated than his predecessors -- is now probably more susceptible to Satan's snares than ever.

Witness -- culture is engaged in a great civil war over who shall control and direct its orthodoxy (commonly called "progress"): from the jihadists to the “enlightened” humanists and atheists (who bring with them the agenda of the secular progressives), or Christians, who bring with them their Bible, and the Word recorded in it. The clashes between these groups make a substantial part of every day's headlines – and not just in Egypt. But what is at the root of those clashes?

The message of the Word is, as I say, unchanged. Our ability to experience its singeing intensity, however, is vastly heightened – indeed, so much so that today’s atheists and humanists are so afflicted by what they perceive of the Word that they become aggravated, and positively militant, in defense of their human-based worldview.

Now, draw the consequences of these points: the atheists and humanists see man, not God or Satan, as in charge. (The jihadists see their god Allah in charge, which comes to the same thing.)

One of Satan’s well-known tricks, however, is to make a victim in his grasp believe that the victim himself, and no supernatural demon, is in control of his own destiny.

But for Christians, we know all too well the snares of Satan – as well as his power over mortals.

What Christian would presume to think himself more clever, capable and powerful than Satan, the original rebel and still earthly Prince of Darkness and Father of Lies?

As between God and Satan, we know that Satan loses (Gen. 3:14; Rev. 12:7-9).

As between Satan and man, Christians know equally well who loses (unless you are a saint) – see Judas Iscariot; see the legend of Faust.

Therefore, whose side do you want to be on? (You have to choose; not choosing is to make a choice for Satan’s side, whether you recognize it or not.)

That is it: the Ultimate Choice. It is always – at any time before you die – free for you to make.

But not making the Ultimate Choice – exercising your “free will” to continue with everything as before – is a choice made not so much by you consciously, but (some would say) by God for you: the choice to leave you to your own devices in a losing battle with Satan.

In that sense, as Paul explains, God predestines you for your fate – because He knows the choices you have consistently made in the past, are making today, and will continue to make in the future -- unless God's eternal and omnipresent Word penetrates to you, the present culture notwithstanding.

The Ultimate Choice is terrifyingly simple, stark and absolute – as the Pope put it: “live for oneself, or live for God.”

There is no other possibility for a committed Christian. (So does that mean that we Christians are “predestined” as well? I leave that query to the theologians and priests.)

Beliefs – and culture – are one’s destiny for the time being. Destiny ripens into “predestination” when one is indifferent, unable, or unwilling any longer to look one’s destiny in the face, and to appreciate where it is taking one. To escape such predestination, one has to be given the grace to grasp the enormity of this Ultimate Choice, in crystal clear terms.

To be perfectly blunt: that Ultimate Choice is God, or Satan -- heaven, or hell.

Those who would argue that the alternatives are instead God or man -- the secular humanists and progressives, the atheists and their ilk -- are simply walking into Satan’s trap, from which there is rarely, if ever, any escape.

That is their choice -- but Jesus demands: “What will yours be?”

Thursday, August 15, 2013

California Abandons Rule of Law to Suit Gays

The case of Perry v. Brown (formerly Perry v. Schwarzenegger), about which I wrote at length here (and in further posts linked at this page), was a case of collusion to produce a desired outcome, namely, the disenfranchisement of the voters of California who passed Proposition 8 -- in favor of a tiny minority of gay-rights activists, and their left-wing supporters.

Nevertheless, it was just the decision of a single federal district court, in San Francisco. Since both California's elected governor and attorney general refused to appeal it, the Prop. 8 supporters hired attorneys to prosecute the appeal, only to have it thrown out by the U.S. Supreme Court because the supporters lacked federal standing. Dismissal of the appeal meant that Judge Walker's original decision and injunction -- directed only at certain named individuals, and protecting only two gay couples -- would become final. As I wrote in this post:
Such a decision would have no precedential value, except to the extent that other district judges -- if presented with the same question -- choose to follow it. There are four federal judicial districts in California -- Northern, Eastern, Central and Southern. Even though Judge Walker has enjoined the Governor, the Attorney General, the State Registrar of Vital Statistics, and the County Clerk-Registrars of Alameda and Los Angeles Counties from applying Proposition 8, he has no ability to extend his injunction to the county clerks of each of California's 56 other counties. (That is a consequence of the plaintiffs' bringing in as defendants only those County Clerks whom they knew would not oppose their case.) Moreover, as this commentator points out, Judge Walker did not certify a class of plaintiffs, so arguably his injunction would permit only the named plaintiffs to get marriage licenses. (Watch how quickly the San Francisco County Clerk ignores that limitation.) 
Proposition 8 is still the law in 56 counties of California, but neither the Governor, the Attorney General, nor the State Registrar will follow it or apply it; instead, they openly defy it. Governor Brown has issued a showcase "order" to all County clerks to issue same-sex marriage licenses, even though State law gives him no authority to do any such thing.

Yesterday the California Supreme Court dismissed -- without opinion -- two petitions for writs of mandate brought by the supporters of Prop. 8. They had asked the Court to order the Governor and the Attorney General to follow the law of this State, instead of subverting it. But the Court could not be bothered with such a non-issue these days as an elected official who disregards the law.

The officials, being all Democrats, are impervious to impeachment proceedings, because their party controls both houses of the Legislature.

And Governor "Moonbeam" Brown is a hopeless case, as is the State Legislature: just this week, the Governor signed into law a bill passed by the Legislature which prevents schools from enforcing gender restrictions for school bathrooms or for sports teams -- all to serve the whims of transgender students, who apparently change their minds from day to day about what "sex" they want to be.

It is a truism to point out that as California goes, so eventually goes the rest of the country. With the most lawless President ever at the helm, and the most spineless Congress in history, look for lawlessness to become the way by which all problems will in the future be solved.

But the people must want it that way, because they keep electing Governor Browns and California legislators back into office. And the people will get just what they deserve.

Friday, August 9, 2013

More Court Proceedings in South Carolina

The Episcopal Church (USA) and its remnant group in South Carolina, ECSC, are hanging on to a federal trademark infringement lawsuit by their fingernails. The attorneys appeared yesterday before Senior U. S. District Judge C. Weston Houck on the motion brought by Bishop Mark Lawrence of the Episcopal Diocese of South Carolina to dismiss or stay the action filed in that court by ECUSA Bishop vonRosenberg for an injunction under the Lanham Act to prevent Bishop Lawrence and his Diocese from using their own historic name and trademarks. (For more background on the issues at stake, see this earlier post.)

As his counterpart in Texas saw the matter, so might Judge Houck: why bother to get into the messy details of a federal trademark action if the earlier case filed in State court will dispose of the matter? He indicated by a question that he was considering staying the federal action pending the outcome of the proceedings in State court. He said he would have a ruling out in “a week or so.”

Meanwhile, the State court case begun by the Rt. Rev. Mark Lawrence and his Episcopal Diocese of South Carolina is moving forward, now that it has been remanded from Judge Houck’s court. The attorneys for all parties were in court on July 11 to discuss a schedule for the case with First Circuit Judge Diane Goodstein, who issued her order eight days later. The order ensures that the case will not dawdle, but will be ready for trial by the summer of next year.

ECUSA is seeking to add additional defendants to its counterclaim, namely, the individual trustees and members of the diocesan standing committee (as a prelude to naming the rectors and vestry members of 37 individual parishes -- some 500 people in all -- following the same punitive strategy it has tried in other cases). The court ordered that any additional response Bishop Lawrence’s attorneys wanted to make to that motion be filed by July 22, with ECUSA’s reply due 10 days later. Those papers have now been filed, and the parties await Judge Goodstein's ruling on the propriety of trying to add any individual defendants to the case.

Judge Goodstein ordered all parties to respond to all outstanding discovery requests (Interrogatories, Requests for Admission, and for Production of Documents) by August 15. Both sides are to complete all written discovery on or before October 10, and all deposition discovery (including expert witnesses) by February 7, 2014. The case will then be ready for trial.

The Judge will hold further status conferences with the parties by telephone on August 9 and September 13, and then will require the attorneys to appear in person at a final status conference set for October 11. On that same date, the Court will hear all other motions noticed and outstanding in the case.

There are two primary motions outstanding at this point, both filed on behalf of Bishop Lawrence, his diocese, and its member parishes: (1) a motion for partial summary judgment that seeks a ruling that “the control of The Protestant Episcopal Church in the Diocese of South Carolina under the civil law of South Carolina is in its duly elected and authorized Board of Directors and Officers, all as alleged in Plaintiffs' Second Amended Complaint ”; and (2) a motion that seeks an order charging those in ECUSA and ECSC subject to the previous injunction (entered by consent, and deferring any opposition to a later date) with contempt of court – for multiple violations of that injunction.

The first motion is an obvious one, and calls for a decision solely under State law. The second motion cites the first violations as having occurred in connection with the invocation of the first special meeting of the remnant group in January of this year:
During the business session of the Special Convention on January 26, 2013, the association now called The Episcopal Church in South Carolina (ECSC), presented and adopted Resolutions that directly or indirectly used a registered name of the Plaintiff Diocese. … Specifically, a resolution references certain actions and resolutions that the Plaintiff Diocese took between 2009 and November 2012 and "that this Convention of The Episcopal Diocese of South Carolina declares them to be null and void and have no legal effect ... "… Other resolutions presented during the Convention specifically referenced Articles and Canons of the Plaintiff Diocese which were references to provisions in the Constitution and Canons of the Diocese of South Carolina. …
The motion goes on to point out that the subsequent gathering of the remnant group in March 2013 referred to itself as the “222nd Annual Convention of the Diocese” on the agenda distributed to participants, and that they adopted at that meeting a Constitution and Canons that were identical to earlier ones of the plaintiff Diocese, and that as such, they contain in them over seventeen references to “the Diocese of South Carolina” – all in violation of the agreed terms of the injunction.

The remnant group has also retained to this day its first URL ( only in order to redirect those looking for the “diocese” to its own site – again in violation of the injunction.

Finally, the motion makes the point that these were not haphazard or inadvertent violations, but the product of an animadversion to the court’s injunction which extended from the very top of the Church down to those executing its policies in the State of South Carolina. It does this by referring to the bizarre beginning of the address which the Presiding Bishop gave to the organizational meeting last January:
In an unmistakable allusion to the South Carolina judicial system, she began by telling a story about a glider that got too close to a no-fly zone near a nuclear power plant in Darlington County. The "local police" ordered him to land, insisting that he violated the no-fly zone while the pilot insisted there was none. He was arrested and taken to jail. Federal authorities heard about it, and the man was released on bond after a night in jail and the charges subsequently were dismissed. Continuing, she stated "local police don't have jurisdiction over airspace" and "these cops were flat out wrong." She then stated the reason for the story:
I tell you this story because it is indicative of attitudes we've seen here and in many other places. Somebody decides he knows the laws, and oversteps whatever authority he may have to dictate the fate of others who may in fact be obeying the law, and often a law for which the local tyrant is not the judge.
Well, "somebody" may soon discover just who "overstepped" their authority. Stay tuned.

Saturday, August 3, 2013

Ah, Houston? Houston, We Have a Problem ...

After trying and trying to soften or mitigate what follows, I have given up. There is simply no way to avoid an impression of, well, astoundment and despair from reading the answers to a radio station interview given in Sitka, Alaska, to ECUSA's Presiding Bishop on the occasion of her visit to the Diocese of Alaska. Perhaps I should have left well enough alone, and allowed the Master Fisker, Christopher Johnson, to take it on (as no doubt he will, in due course).

But again -- I simply cannot let what she says to the public pass without commentary, so long as she is enabling all the litigation against Christians who used to belong to ECUSA, and so long as she (implicitly, through her budgets) supports and sends ECUSA's money to abortion organizations like the Religious Coalition for Reproductive Choice.

The Bishops in the House of Bishops are not calling her on these things. Nor has General Convention. Nor has any Diocese, except for the ones that she has driven out of the Church. So I, along with the readers here at SF, shall have to do what they should all be doing. After all (see below), she encourages individual Episcopalians like me to contribute to the "tension and conflict" in the Church, because only in that way can the Church "grow" and become "creative."

Just think of what follows as one Episcopalian doing his part for his Church, in the manner she indicates below that it should be done. Here follows the main part of the interview, with my comments and responses indented and highlighted:

KCAW: There are often conflicts, or tension, between science and faith. How do you handle that tension in your role?

Jefferts Schori: Many in the general public believe there’s a conflict because of what they hear from very conservative Christians.
Oh – and not because of what they hear from Richard Dawkins or Sam Harris, or the mainstream media, or from Your Own Most Reverend Self? 
Right -- just from "very conservative Christians."
... I think it’s more a myth than a reality for many people.
Wait – “many” believe there’s a conflict between science and religion, but “many” also think the conflict is a myth? So who prevails, and how?
... There are two creation stories in Genesis, in the first book of the Bible, and they tell rather different stories about how things came to be the way they are.
When one has no more to say than “many think this,” and “many think that,” switch the subject.
... The first one talks about creation on six days of the week, and God resting on the seventh. And at each point during that week, God says “It is good,” what’s been created that day. God gets to human beings and says “It is very good.”
Not so fast – my Bible says that “God saw everything that he had made [not just the humans], and behold, it was very good.” So what about the rest of creation?
... I believe I’ve got a much richer view of the way things are than I would if I only used one of them.
Well, that of course answers my question. You surely are entitled to your belief – but you might want to be a bit mindful of the position (and responsibility for souls) that you hold.
KCAW: So many churches right now are experiencing schisms or division or difficulty dealing with a lot of current social issues, whether it’s gay rights, or even just theology differences between a congregation and its pastor.
Note that the questioner, who is otherwise quite good, buys into the entire “gay rights” meme – when no one, saints, sinners, gays or numismatists – has any “rights” to claim before God.
... The Episcopal Church is experiencing that; the Anglican church is experiencing that. Can those be avoided, or is that just a natural evolution of people and an institution?
There’s that “evolution” meme again – as though it were in the hands of others (Mother Nature? randomly colliding molecules?) than in God’s.
Jefferts Schori: I believe conflict is an opportunity.
Just like President Obama – don’t let a good crisis / conflict go to waste. But wait -- didn't you imply above that all the "conflict" came from those "very conservative Christians"? And so now the conflict they are causing is a good thing, because it brings an opportunity? For whom, and to do what? I'm afraid I am a bit confused. I hope you clarify your point here.
... It’s a sign of the possibility of growth and development, if it’s well managed.
Wait a minute, wait a minute – just who is “managing” this “conflict”, and who, or what, gave them the authority to do so? (Somehow, I don't get the notion that it's the "very conservative Christians.")
... If it gets too strong and too arduous, if it explodes, it’s not being used for the possibilities it has.
Hide behind the passive voice: it’s not my fault if it “explodes” -- it's the fault of those darn conservative Christians.
... If there’s no conflict, there’s no possibility for growth, because there’s no tension, there’s no invitation to look at things in a different way.
All right, let’s be charitable here, rather than dwell on the contradictions: growth comes out of tension and conflict. Sure, I can buy that on an elementary level: all living things compete for limited resources, and one man’s meat is another man’s poisson. But “invitation to look at things another way”? Again, just who is doing the “inviting”?
... We’re going through a time, as Phyllis Tickle calls it, it’s the “500-year rummage sale.” Every 500 years the church, or religious communities, look at the way things are and discover that something’s really not working.
You agree with that? Henry VIII engaged 500 years ago in a “rummage sale” of the Pope, because his marriage to Catherine of Aragon wasn’t working? (How did the Pope feel about that? -- oh, right: the "conflict" thing.) And the Catholic Church rummaged off Martin Luther, because it couldn’t digest his 95 theses? So that’s what’s going on!
... You referenced earlier the tension many people see between religion and science. That’s a conversation of the Enlightenment.
At least she’s got that down pat. But, wait – didn’t she say earlier that “many people” still think today there is a conflict, while “many people” today think it’s a myth? (Go back to her answer to the first question.) So are we still in “the Enlightenment”?
... We’re coming to a time when people are more comfortable with a variety of viewpoints, and that is in significant tension with people who believe there are only black-and-white answers in the world. We’re wrestling with that transition right now.
Oh, I see – we’re coming out of “the Enlightenment,” when those who are “enlightened” will leave behind those who still think in black-and-white terms. It’s a wrestling match, but she is confident: gray wins, black and white loses. That is one very perilous way to view God's revelations to man.
KCAW: So what’s the successful model for handling it? Jefferts Schori: The Anglican tradition at its best has always said a diversity of viewpoints is a sign of health, that none of us knows the fullness of the truth, but that together in community, we have a greater possibility of discerning something truthful.
Really – is that what Hooker said? Those whom I trust to read Hooker must have studied at a different school of theology – but then, of course, not many of them were deans.
... We’ve never been black-and-white thinkers.
Who is “we”, Your Reverence? Are you saying that Thomas Cranmer, Hugh Latimer, or Nicholas Ridley thought in a different mode from Thomas Moore? That none of them knew what was white, and what was black in terms of their theology, but they all thought it relative? (And “relative” to what, by the way?)
... We’ve insisted that dialogue and conversation is the way to discover and to discern more of God’s truth. It’s hard work, and it does lead to some conflict — that tension I talked about — but it’s creative.
Like the “dialogue and conversation” you engaged in with the parishes in Virginia? Or in Connecticut? Or In South Carolina? You have a strange notion of what constitutes “dialogue and conversation”, and I’m beginning to suspect your use of the term “creative”, too -- as in: who is doing the "creating"?
KCAW: I know a lot of people who profess to a faith, or some sort of belief, but are skeptical of organized religion. What’s the case you can make for why organized religion is an important thing in the world today?
A great question, by the way – but asked of the wrong person.
Jefferts Schori: I think we have to be skeptical of it.
Do you see what I mean?
... We have to insist that no human institution can ever have the fullness of the truth, and therefore there has to be possibility for questioning, for doubt, for push-back, or the institution simply ossifies. It tends to ossify in unhealthy, even sinful directions — that the person at the top has got all the truth and is going to tell people what to do, or it only answers old questions and doesn’t deal with new ones.
Please remember this answer for later: “no human institution -- and she apparently includes the Church Catholic, since she offers no qualification -- can ever have the fullness of the truth.” (And of course, she is right, as far as she goes. In fact, she is dead on, but doesn’t know it, when she speaks of human institutions, i.e., ones guided by the spirit of man, rather than ones led by the Holy Spirit. See what follows.)
... Institutionalized religion, if you will, that which binds people together (which is what religion means) works in a constructive and creative and Godly way when it continues to move and evolve. It has to.
Note that it is the “institutionalized religion” which continues to “move and evolve.” And who else “moves and evolves”? Man, that’s who – while I’ve never heard of God “evolving.” Is she saying that man's evolution is of one piece with that of the organized church? Or is only the evolution of man "mechanical"? (See above.)
KCAW: I think there’s a spectrum that especially Christian denominations operate on, from “the door’s open, we’re here if you need us,” to “we have to go out and save the atheists.” On a spectrum, where do you see the Episcopal Church? What’s the mission of the church, especially in terms of nonbelievers?
Once again – wrong person to ask. Just ask all those whom she has personally sued.
Jefferts Schori: You will find Episcopalians spread out across that spectrum. That’s part of our characteristic DNA. We’re not all in the same place.
“Characteristic” of our “DNA”? What about characteristic of our lack of spiritual leadership?
... But I think overall, the Episcopal Church is coming to understand its part in God’s mission to be present in the world,
Watch what she does with the passive verb of “being present in the world.” For her, the passive is really the active, because there is no Prime Mover other than man.
… not simply to expect people to come inside our beautiful buildings and find us there, but for us to be present and active as agents of transformation in the world around us,
“agents” of transformation – got that? It would be fine if she meant “God’s agents of transformation” – but watch what she actually says.
… toward something that looks more like the kingdom of God, shalom, a beloved community, where people treat each other with justice,
And who defines what “justice” actually is for any people? Aye, there’s the rub. Somehow, I don’t get the notion that she intends to leave that function to others than those who think as she does (i.e., forget those very conservative Christians, for example).
... because we see the image of God in our neighbors, and we understand that loving our neighbors means responding to needs and issues and pain and fear, and not avoiding it.
Fine – all well and good – but where is the acknowledgment that we and our neighbors are all fallen creatures, and need first of all to repent before we can be of true assistance to our neighbors?
KCAW: What does the church get right? Jefferts Schori: The church gets right the wonder of God’s creation, the beauty that is present all around us, that life is a gift, and therefore every human being whom we meet is a gift to be unwrapped and discovered.
The "wonder" of God's creation -- as (for example) a fetus in the womb? 
The Church gets that “life is a gift”? Really? A gift bestowed by whom? Is that why the Episcopal Church (USA) supports the Religious Coalition for “Reproductive Choice”, because it believes that life is a "gift" from one’s mother, which she may also withhold, as she chooses? 
Do you begin to see why someone needs to call her out on these hypocritical platitudes?
... The church gets right its understanding that mission means leaving the worship service to go back into the world to respond to that gift and opportunity in human beings, and the needs of the world around us.
I don’t think so – not so long as it encourages support of present-day abortion practices as a “blessing.” You might want to consult Dr. Gosnell – he used to live in Philadelphia, but I’m sure you can still find him.
KCAW: What does the church get wrong?
Once again: great question; wrong person to ask.
Jefferts Schori: The church gets wrong understandings that issues are political and therefore not significant to life as a Christian.
Was that a slap at the CCAB’s of General Convention? Who spend all their time debating “disinvestment” in Israel, the “justice” of the Palestinian cause, and all that other nonsense that General Convention wastes millions of dollars on?
... And that doesn’t happen everywhere, thanks be to God.
What about in your own Church? Can you be so blind to what the main "accomplishment" of each General Convention actually exemplifies?
... The church gets wrong a narrow understanding that we’ve figured it out for all time. The church gets wrong a tendency to believe that we’re better than other Christian communities because we’ve figured it out. We haven’t. We’re all on the road, always.
Yes – “on the road”, as in maintaining over 75 punitive lawsuits against fellow Christians in some 35 states, at a cost of over $25 million. But guess what? We have it from the highest authority that they still haven’t figured it out yet. Now, that should be reassuring.
KCAW: All the time, reporters ask you about science and faith and your background and schisms in the church and all the things I’ve asked about in this interview. What’s the question you wish reporters would ask you more often, and what’s the answer to it?
Talk about a softball pitch … watch carefully what she does with it.
Jefferts Schori: I think the question that people almost everywhere ask in the depths of their heart is “What does it mean to be a human being in relationship to all that is around us?”
Note that our “relationship to all that is around us” comes before she mentions God. (Just sayin’.)
And I think that’s the deeply spiritual question. Where do you find God?
I thought she’d never ask. But watch how she answers her own question.
Where do you find the presence of God? Where do you find God at work in the world around you, in the depths of your own heart, and how do you live a good life in response to that? KCAW: Is there an answer?
The best question yet – kudos to this interviewer for putting it to her straight.
Jefferts Schori: The answer, I believe, lies in membership in a community of faith. That’s what the church is for.
Wait, WAIT!! Didn’t she say earlier that it’s the community that is the source of conflict and tension, because no one has the right answer, and no one can agree? So to find God we have to add to the conflict and tension? How does that play out on Main Street? (“The Episcopal Church welcomes you: come and be a part of our tension and conflict -- we put the 'fun' back in 'dysfunctional'.”)
It’s to encourage and challenge us in relationship to continue to grow. It is the useful reason for conflict and tension,
“Useful reason”? By whose standards? Oh, that’s right – I forgot. You set the standards; the rest of us dissenters just add to the conflict and tension.
...because no one of us gets it completely. It’s in that tense, even conflicted relationship with another human being who disagrees with us that we find the opportunity to discover God at work.
Again (sorry to harp on this, but her platitudes simply invite it) – just as in all the lawsuits you are maintaining against those who disagree with you and your Church. And of course, I understand now why you make a point of suing individual rectors and vestry members – and not just for damages, but for punitive damages. It's all just part of the "tension." 
Be a sport, eh? That's the point of it? 
It’s all so the ones sued -- and those who give (and gave) the money used to sue them -- will finally see ... [wait for it: drumroll and cymbal flourish]

God at work." 

Right. Got that.

Over and out.

Thursday, August 1, 2013

Court Socks LA Presbytery with $400K in Sanctions

In an order made public by The Layman online earlier today, the Hon. Kay Bates, Judge of the 19th Judicial District Court in Baton Rouge, Louisiana imposed compensatory sanctions of $390,000 against the Presbytery of South Louisiana ("PSL") for conduct by its agents and attorneys, as well as by personnel and attorneys from PCUSA headquarters, in the litigation between PSL and the Carrollton Presbyterian Church of Carrollton (a district of New Orleans) -- a unit of PCUSA which has only about 20 members -- over the ownership rights to Carrollton's property.

The order is remarkable not only for the amount of sanctions awarded, but for the public dressing down which Judge Bates gives to various PCUSA counsel for their egregious litigation tactics, which included:

(a) Willfully flouting the Court's Temporary Restraining Order, issued shortly after the litigation began, which (among other things) forbade PSL from attempting to dissolve Carrollton;

(b) Claiming that the officials of PSL who voted to dissolve Carrollton -- twelve days after the issuance of the TRO -- were "unaware" of the Court's TRO;

(c) Nevertheless arguing to Court afterwards that the dissolution of the church had deprived the court of its subject-matter jurisdiction, because there was no longer any plaintiff due to PSL's "ecclesiastical act" in dissolving Carrollton;

(d) Proceeding to press its claims for Carrollton's property under the trust clause (akin to ECUSA's Dennis Canon) in PCUSA's Book of Order, even though Carrollton had properly and timely exercised its option to be exempt from that clause;

(e) Continuing with the lawsuit, even after PCUSA's leading in-house lawyer opined that PSL would lose, and after PSL's own corporate representative testified in deposition that PSL had no legally cognizable claim to Carrollton's property, in order to run up Carrollton's legal costs though extensive depositions and discovery, with the intent and expectation that the small church would have to fold;

(f) Removing the lawsuit to federal district court, and then expressing the views that the magistrate judge who recommended that the suit be remanded to State court exemplified man's "total depravity", that the federal court itself was "compromised", and that it was overseen by a district judge who was lazy, and let matters be decided by the "skin color" of the attorneys who appeared before him;

(g) Making outlandish and unsupportable legal arguments about the powers of PCUSA as a "hierarchical church", with the ability (following the U.S. Supreme Court's 1979 decision in Jones v. Wolf) to impose trusts unilaterally on church property under Louisiana law;

(h) Expending over $500,000 in the first year of litigation for a property that was appraised at $1 million, without counting how much it spent in 2010 and 2011 (which PCUSA has not yet divulged);

(i) Continually misrepresenting facts and law to the Court, even after being corrected and admonished; and

(j) Belittling and trivializing the above serious conduct in the course of the sanctions proceedings.

In other words, PSL's attorneys and agents joined in a conspiracy of extreme bad faith and disrespect for the judicial system, coupled with an abuse of its procedures in an attempt to render their opponent penniless. (And it is not as though Carrollton was trying to leave PCUSA. It wanted to lift the burden of its property from its small congregation by selling it to a neighboring Catholic school, and then leasing it back just for Sunday and occasional services—see the story linked above for details.)

Sound familiar, anyone? 815, are you listening?

The court learned of all this conduct when it ordered PSL's counsel to produce all in-house emails, including those between counsel, after determining that they did not qualify for the attorney-client or work-product privilege because they had been shared with so many who were not parties to the case. Judge Bates wrote: "The court is not speculating. The participants to this scheme astonishingly acknowledged all of this in their own words."

The opinion is remarkable also for its straightforward and clear-headed analysis of the traditional principles of trust law, by which the settlor of a trust (the person who owns the property being put into a trust) must consent in writing to its creation. It clearly and carefully distinguishes the judicial abnormalities (due to particular and individual state statutes) in New York and California (links to the cases at this page), and cites the All Saints Waccamaw case as an instance of correct application of "neutral principles of law" to resolve these church property disputes based on unilaterally declared denominational trusts.

It is especially welcome and refreshing to see language from a trial judge like this (p. 11):
Almost thirty years ago a unanimous Louisiana Supreme Court held that the use of the neutral principles of law method was constitutionally mandated in Louisiana. Fluker v. Hitchens, 419 So.2d 445, 447 (La. 1982).  
For present sanctions purposes it is significant that Fluker held that failure by a civil court to exercise subject matter jurisdiction to resolve a church property dispute "simply because the litigants are religious organizations, may deny a local church recourse to an impartial body to resolve a just claim, thereby violating its members' rights under the free exercise provision, and also constitute a judicial establishment of the hierarchy's religion". Fluker at 447 (emphasis added). That, however, is what the PSL has asked this court to do. It has asked this court to ignore a fundamental constitutional guarantee and a unanimous Louisiana Supreme Court mandate -- by effectively disregarding the deeds, articles of incorporation, and state property and trust law and instead "interpret" Wolf to authorize the imposition of an enforceable trust merely on the basis of the PCUSA's addition of a purported express trust clause in the early 1980's to its denominational constitution. The PSL urged this court to enforce the asserted trust against Carrollton Presbyterian Church's civil corporation, the owner of the property, solely on this basis even though Carrollton has existed since 1855, has been incorporated since 1894, and acquired or built all of its real property using its own funds prior to the addition of this purported trust clause. 
And more, like this (p. 27):
The PSL's jurisdictional argument, that the case before this court is ecclesiastical and, therefore, the First Amendment guarantee of religious freedom places this case beyond civil court authority, was expressly rejected by the U.S. Supreme Court in Jones v. Wolf, 443 U.S. 595 (1979). That case involved a member church of the PCUS (the PCUSA's legal predecessor). The denomination argued then, as the PSL did now, that its property-related internal processes were "ecclesiastical" in nature and therefore could not be interfered with by civil courts without violating the denomination's free exercise rights. A majority of the U.S. Supreme Court forcefully rejected this argument, explaining:
The dissent also argues that a rule of compulsory deference is necessary in order to protect the free exercise rights "of those who have formed the association and submitted themselves to its authority". This argument assumes that the neutral--principles method would somehow frustrate the free-exercise rights of the members of a religious association. Nothing could be further from the truth. The neutral-principles approach cannot be said to "inhibit" the free exercise of religion, any more than do other neutral provisions of state law governing the manner in which churches own property, hire employees, or purchase goods."
Jones v. Wolf at 605, 606. The words of the U.S. Supreme Court are unequivocal. "Nothing could be further from the truth." What was true then remains so.
Then there is this passage, which has ramifications for ECUSA's Potemkin dioceses, who hide behind ECUSA's ecclesiastical apron to claim they are the same entities under State law as the ones who voted to leave (p. 31):
As the PSL is aware from the pleadings, the plaintiff in this case is a civil corporation formed under the laws of the State of Louisiana. The plaintiffs corporate articles grant exclusive authority to the corporate Trustees to "hold title to and control the properties of the corporation ... ". The PSL was also aware from the outset that this corporation is the title holder of record. It is axiomatic that the dissolution of this corporation is not governed by the PCUSA Book of Order but by the laws of the State of Louisiana, in particular, La. R.S. 12:249, et seq. The PSL at all times knew that Carrollton did not want to be dissolved and had not acted to become dissolved. Nor could the PSL usurp the authority of the state to dissolve a civil corporation that was created in the first place pursuant to the laws of the State of Louisiana. It is well-established that ceding such civil power to ecclesiastical authorities would constitute an unconstitutional state establishment. Accordingly, when a presbytery acts under G-8.110301i of the PCUSA Book of Order "to divide, dismiss, or dissolve churches in consultation with their members", all the presbytery can do is either divide one PCUSA church into two PCUSA churches, dismiss a PCUSA church to membership in another Presbyterian denomination, or dissolve a church as a member church of the PCUSA. The local church still exists. It's just not a PCUSA church any longer.
And this observation should put the last nail into the "hierarchical"coffin (p. 33):
Interwoven throughout almost every pleading and memoranda the PSL has filed or submitted to this court the PSL emphasized the form of ecclesiastical government (polity) said to characterize the PCUS and PCUSA. The PSL argued that because trust clauses are contained in the 1982/1983 edition of the PCUS Book of Church Order (§ 6-3) and the PCUSA Book of Order (G-8.0201) Carrollton was therefore necessarily bound by them due to the PCUSA's allegedly hierarchical polity. The PSL wrote, "Critically, the PCUSA is a connectional church that is hierarchical in nature, rather than congregational ... " What the PSL has said is "critical", though, the U.S. Supreme Court has said is irrelevant. Comparing the neutral principles of law approach with the deference approach, the U.S. Supreme Court said, "The neutral-principles approach, in contrast, obviates entirely the need for an analysis or examination of ecclesiastical polity ... " Wolf at 605. The majority in Wolf said that, "[T]he suggested rule (by the minority, of compulsory deference) would appear to require a "searching and therefore impermissible inquiry into church polity"." Wolf at 605, citing Serbian Orthodox Diocese, 426 U.S. at 723. What Wolf said about polity, juxtaposed against what the PSL said about polity, cannot be reconciled.
The court engages in such a searching and complete analysis of the law in this sphere -- not because it needed to decide about the property (its decision in favor of Carrollton in 2010 was upheld in 2011 by the Louisiana Court of Appeals, and further review was denied by both the Louisiana and United States Supreme Courts), but because it needed to do so before imposing sanctions against attorneys for their improper arguments. That is not something attorneys (or lay people) see every day.

The law in Louisiana is now as clear as it is in South Carolina: unilateral denominational trusts will be given no force or effect on their own, and demonstrating the intent of the parish to allow a trust on its property is paramount.

The courts of Louisiana and South Carolina have, in essence, told the litigators of PCUSA (and by  inference, of ECUSA as well): "Weaving spiders, come not here ... Your arguments will be weighed and found wanting."