Bishop Minns Takes His Stand

I see from the Lead that CANA Bishop Martyn Minns has issued a pastoral letter to Fr.Don Armstrong's breakaway congregation regarding Fr. Armstrong's conviction of 2 counts of theft--one count felony and one misdemeanor theft. (My more detailed analysis of the plea, in which Fr. Armstrong did not admit culpability, and the felony component of which will, if he successfully completes probation, dismissed and possibly expunged, is here; Rev. Armstrong's plea agreement explicitly states that he both counts as to which he is to be convicted are charges of theft (Plea Agreement at p. 2, Par. 3.A (felony theft); p. 2, Par. 3.B (misdemeanor theft))).

Bishop Minns writes:

You have been in my prayers as the legal nightmare that you have all endured seems to be coming to a close. While a number of definitive actions have been taken, there are still more decisions to be rendered and hearings to be held; therefore at this juncture it is not appropriate for me to comment on specific legal issues. I am looking forward to my visit next month when I will meet with members of the leadership and legal teams to more fully understand the situation and its likely trajectory.

In the meantime, one thing I can and will say is that my love and respect for Don and Jessie and the leadership of St. George’s has not diminished but rather increased by the way in which you all have conducted yourselves. You have all been examples of God’s grace at work. I am delighted to count you as friends and it is a privilege to serve as your bishop.

It is my belief, based upon a thorough investigation of the contested facts, that this entire situation never should have been made the subject of a criminal investigation. I am convinced that if ever there was a situation that underscored the wisdom of our Lord’s teaching in the Sermon on the Mount about settling matters out of court (Matthew 5:25– 26), this is it! Millions of dollars have been wasted; lives have been disrupted; reputations destroyed; and the Gospel of Christ obscured by the controversy — and we are still far from reaching a place where we can show the world the power of God’s transforming and reconciling love.

(Emphasis added; text of quoted paragraphs unedited to provide context).

Now, to the extent that Bishop Minns is signaling that he has no intention of disciplining Fr. Armstrong, that is his right and his privilege. He is the bishop, and it is for him to determine what standards he will hold his clergy to. I'm a layman and would not presume to opine on that privilege. I find his exercise of that right in this case disturbing, and am glad to see many reasserters do as well, but that's as far as I'm prepared to go. However, as a former public defender, and a practicing lawyer, I do feel that I must address his statements regarding the criminal justice system.

When Bishop Minns writes that "[it is my belief, based upon a thorough investigation of the contested facts, that this entire situation never should have been made the subject of a criminal investigation" he is speaking what can most kindly be termed arrant nonsense. Fr. Armstrong, as a result of this plea, will be conclusively adjudicated (upon its formal entry) a convicted thief. Even if he successfully serves his 4 years of probation, Fr. Armstrong will remain a convicted thief, albeit a low-level thief. To say, in the face of this legal fact, that the matter did not rise to the level of being worthy of investigation is, simply, absurd. Any case which results in a fairly obtained conviction of some or all of the charges is, obviously, one which warrants investigation. Period.

Bp. Minns seems to labor under the impression that the low level of offense which will remain on Fr. Armstrong's record, assuming he successfully completes probation, renders this case a triviality. First, four years probation, for a first offense, with no violence, up to a year's imprisonment still a possibility and an unknown amount of restitution to be ordered, is hardly trivial. (And I think these statements are increasing the prospect of a custodial sentence and the amount of the restitution, Fr. Armstrong. My every defender's instinct wants to yell, "SHUT UP!" at you for your own good). But there is a more fundamental flaw with Bp. Minns' analysis.

As I explained in my earlier post, the deferred sentence is under the Colorado Supreme Court's ruling in People v. Darlington, a vehicle to allow for compassionate treatment of offenders in "the interests of justice." It's not that such offenders aren't guilty; it's that their exposure to the full rigor of the legal system would cause more harm than the deterrence, retributive and rehabilitative purposes of the criminal sanction would justify.

[I am aware that Armstrong's attorneys have suggested that the prosecutors were concerned about statute of limitations problems. Perhaps. However, as Armstrong's camp have not been, shall we say, honest in their accounts of the plea, I am skeptical. This case savors to me of a prosecutor who wanted a conviction, but not to ruin the otherwise socially beneficial life of a clergyman--a not uncommon attitude when offenses are financial in nature].

And this is where Bishop Minns--and Fr. Armstrong too--are being unacceptably cavalier. In trying to spin this act of grace from a legal system which does not prioritize grace, as a loss to the prosecutor, they are disincentivizing the prosecutor's office from offering other offenders the same benefit. Prosecutors are judged by their records, and are always eager to show how tough they are. When the object of their mercy claims victory, and that the prosecutor threw in the towel, they'll think twice before offering someone else a chance.

The Lost Leader (2)

Archbishop Williams admits to having thrown gays and lesbians in general, and Jeffrey John in particular, under the bus, for the good of the Church:

Dr Williams said he had been conscious of the issue of homosexuality as "a wound in the whole ministry" since his appointment as Archbishop of Canterbury in 2002. But he had to decide against endorsing gay relationships for clergy and bishops because "the cost to the Church overall was too great to be borne at that point". He said: "To put it very simply, there's no problem about a gay person who's a bishop. It's about the fact that there are traditionally, historically, standards that the clergy are expected to observe. So there's always a question about the personal life of the clergy."

Dr Williams admitted that one of the most difficult periods in his eight years at Lambeth Palace came when he blocked the appointment of the gay, celibate cleric Jeffrey John to the post of Bishop of Reading.

He said he let down Dr John, who was instead appointed Dean of St Albans.

The Archbishop should remember that the saying "it is expedient that one man should die for the people" is spoken by Caiaphas, not generally looked up to as a model of Christian behavior.

More details at The Lead.

A Generous Orthodoxy?

Um, our friends over at Stand Firm have asked the question "is it possible to reject the historicity of Adam and Eve and remain orthodox," and overwhelmingly have answered it "no." Father Matt Kennedy offers several scriptural basis for this conclusion:

Not only does the text of Genesis 2 itself bear the markings of historical narrative, but to suggest otherwise is to falsify Jesus' teaching on marriage. Jesus affirms the historicity of Adam and Eve and the Genesis account of their creation and marriage in Matthew 19:1-6.

He adds:

And, moreover, the divinely revealed doctrine of the Fall hinges in large part on the existence of a real Adam who truly sinned as the counterpart to the real Jesus who was/is truly righteous and who truly died and rose again. . . Obviously Paul understood both Adam and Jesus to be historical figures. To suggest that Adam is a merely figurative character representative of humanity as a whole not only cuts against Paul's clear meaning, but it also destroys the argument of the text itself. The historical man Adam plunged humanity into sin and death through an historical sin. The historical man Jesus redeemed humanity through his historical death and resurrection. Take away the historicity of Adam and the parallel upon which the argument is built no longer works.

Later in the comments, Fr. Kennedy states that he is "tending more and more toward a Y[oung] E[arth] position," although he allows some room for doubt on the point.

Now, frankly, I find this kind of depressing. Remember what the enterprise is; Father Kennedy is defining not his belief, but the outer limit of Christian orthodoxy. The Stand Firm crowd is saying that the second Oxford Movement of the 19th Century are too radical to count as Christians. Of course, there is no effort to engage with Gore's kenotic theory. Or Aubrey Moore's use of evolutionary theory in defense of orthodoxy. Or Illingworth's relation of evolution to the Incarnation.

In short, sola scriptura. In science, as in all else. Stand Firm seems to me to be defining itself out of Anglicanism in any meaningful sense.

Also, of course, a reliance on the literal truth of Genesis leaves re-opens the justice questions arising therefrom. First, as Mark Twain famously noted, how is the punishment of Adam just? God "commanded Adam not to eat of the tree of the knowledge of good and evil; To disobey could not be a sin, because Adam could not comprehend a sin until the eating the fruit should reveal to him the difference between right and wrong. So he was unfair in punishing Adam for doing wrong when he could not know it was wrong." Moreover, even if this hurdle is surmounted, the notion that "in Adam's fall we sinned all" taken literally opens another justice question: how can descendants be held personally accountable for sins committed before their birth? Should human justice be meted out so? However, these are side issues of course; my complaint is not so much what Kennedy et al come to believe, but with their conflation of their own views with the bounds of orthodoxy. If their views indicate where the reasserters are headed--well, that untempered schism may be just as well; I have no desire for what Clarence Darrow called "the setting of man against man and creed against creed until with flying banners and beating drums we are marching backward to the glorious ages of the sixteenth century when bigots lighted fagots to burn the men who dared to bring any intelligence and enlightenment and culture to the human mind."

UPDATE, 9/25/10: They're not alone, apparently:

An Exchange Re: Obama and the GLBT Community

Today an e-mail of mine was selected as Andrew Sullivan's Dissent of the Day. Something of an honor, really, as Sullivan is unquestionably the big leagues of blogging.

Anyway, here is what I wrote:

You've pointed out twice now that "[n]ot a single prosecution of an anti-gay hate crime has occurred under the law in the year since it [the Hate Crimes Prevention Act of 2009] was passed." May I point out that, as a criminal statute, the Act can only operate prospectively, under the Ex Post Facto Clause of the Constitution? As a former public defender, I'm aware that judging a statute by the number of prosecutions within a year of its enactment is a pretty bizarre metric, since only acts committed after passage are even arguably subject to prosecution under the Act. Since you earlier noted that there are investigations pending of criminal acts which might result in charges under the Act, I think the ill-founded nature of this contention is self-evident.

By contrast, I think your complaint that "it took Obama over a year to begin a year-long Pentagon review. If he had acted sooner, the review would have been done in time for the vote" is not entirely divorced from reality, but is a bit naive. Doesn't it make sense that President Obama would have wanted to forge relationships with the military brass prior to starting the review, in order to avoid the blatant, insubordinate--and successful!--sabotage that Bill Clinton was subject to?

You know, I admire the lucidity of "The Conservative Soul," the passion you've brought to your anti-torture campaign, and much you've written about Palin. But I think that you're projecting responsibility for the villainy (no other word fits) of the GOP and its demonization of GLBTs onto a single man who is trying to coax a fractious party that has been in a defeatist crouch for decades into strong action. He's not a god-king. And your reaction is, I'm sorry to say, both over the top and helpful to the Party of No.

Now, let me point out that I was not entirely defending Obama let alone the Democrats, but that I sent my e-mail within a day of Sullivan writing that "[i]f I lived in Nevada and had the vote, even though Sharron Angle is beyond nuts, I'd vote for her. Better nuts than this disgusting, cynical, partisan Washington kabuki dance, when people's lives and dignity are at stake."

In responding to my dissent, as he sometimes does, Sullivan wrote:

I will gladly report any prosecutions that occur in the future that clearly would not have occurred without the Hate Crimes Act. As my reader noted, there are several investigations in process and some may get somewhere. But this act was sold as a vital defense against gay-bashing. I call bullshit on that now as I did then. It was a fundraising tool for HRC primarily and a way for the Democrats to do nothing substantive for gay equality, except treating us as victims in need of their protection. Nonetheless, I promise to provide an annual update on prosecutions to measure its impact, along with data on anti-gay hate crimes, to see if it has any effect whatever on their incidence. As to the final point, where is there evidence that the president has done a single thing to "to coax a fractious party that has been in a defeatist crouch for decades into strong action"? I see none. No speeches defending gay equality, except to the pathetic tool of the Democrats, the Human Rights Campaign. No public support on marriage equality, which he formally opposes, even as a majority of the public backs it. He even prevented anyone in the administration from celebrating the end of the HIV travel ban before it was passed, so scared was he of Republican bigots. I know. I tried to report on the record about progress but was told shhhh - we might alert the right.

I don't think anyone can possibly accuse me or the Dish of excusing or ignoring the virulent and disgusting homophobia of the Christianist GOP. There is no comparison on the merits between their hate and contempt and the president's indifference and cowardice. But I refuse to have their bile held over my head as a reason to shut up about the Democrats' uselessness and this president's betrayal of almost every single promise he made about gay equality in the campaign.

I think he actually is closing much of the gap between us here. On the Hate Crimes Prevention Act, he is (I think) tacitly conceding my main point, that the efficacy of the statute can't be evaluated so soon after its enactment, as it can only apply to post-enactment conduct. The fact that he thought the statute was not responsive to a vital need before it was passed and continues to think so now doesn't blunt the fact that reporting of crimes, as well as investigations and preparation of prosecutions under a bran-new statute, take time. I'm not trying to get him to love the statute, but to use a reasonable metric to grade it by.

As to his second point, my own statement was somewhat--not entirely!--overly strong. But it was occasioned by Sullivan's own hyperbolic statement of preference for Angle over Reid--which I think is greatly rectified by his statement that "There is no comparison on the merits between their hate and contempt and the president's indifference and cowardice." I confess that he may know better than I do regarding President Obama's actual views. I think discounting Obama's speeches made to HRC because of the venue is a little tough on the President, and I think Sullivan overstates the President's indifference. But Sullivan is actively engaged in this fight, has met the President, and his view of the behind the scenes is certainly more informed than mine.

Regardless, I certainly don't want to shut him up, or mute his entirely justified criticism of the Administration and of Congress. Pressuring them until equality is reached is the only way to make any progress. I just don't want the debate to be framed in a way that excuses the bigots from their bigotry, and places all the onus on those who are, on the whole, well intentioned, even if they are lacking in passionate intensity.

By the way, I stand by my compliments to Sullivan,especially regarding The Conservative Soul, which makes the best case for a non-Christianist, non-extremist, honorable conservative philosophical tradition of which I am aware.

A Big Break, But Not a Pass

There's been a fair amount of confusion over what happened in the Colorado Springs case of Father Don Armstrong's is-it-or-isn't-it a guilty plea. Most of that confusion stems from a since-removed statement in support of Father Armstrong claiming vindication. Of that, more in a moment.

However, the actual plea agreement is online, which allows for greater clarity. Armstrong pleaded nolo contendere (that is, no contest), to one of the felony charges,theft in the amount of $15,000 or more. On that charge, he will receive a deferred sentence (which, if he completes 4 years of probation successfully, would result in this count's eventual dismissal and expungement).

He also agreed to enter what is called an Alford plea to a non-charged misdemeanor, for which he will be sentenced. There is no factual basis for the misdemeanor in the indictment; the factual basis for the felony to which he is pleading are the facts in the indictment.

So, what does this mean? First, the misdemeanor plea is not based on the charges, which were all felonies. It is a device, I suspect, to allow for the imposition of some criminal sentence, and to allow Fr. Armstrong to serve less than a year. In other words, the prosecutor refused to let him simply receive probation, and Armstrong accepted that. (Mind you, under the agreement Armstrong's counsel can urge the court for a non-custodial sentence, so he still has a shot of not serving any time. But the prosecutor hasn't consented to such a disposition).

Second, as he Supreme Court of Colorado has explained:

A nolo contendere plea, also called a no contest plea or plea non vult contendere, literally means “I do not wish to contend.” Black’s Law Dictionary 1074 (8th ed. 2004). Nolo contendere is a common law plea. Hudson v. United States, 272 U.S. 451, 453 (1926); Young v. People, 53 Colo. 251, 125 P. 117
(1912). In its early form, the plea was considered an implied confession of guilt entered only with leave of the court in light misdemeanors. K. A. Drechsler, Annotation, Plea of nolo contendere or non vult contendere, 152 A.L.R. 253 (1944). In
modern usage, a plea of nolo contendere is considered substantially, though not technically, a plea of guilty acceptable for a variety of offenses. Id. at 25657.
. . . . Nolo pleas may also be referred to as “Alford” pleas, originating from the United States Supreme Court decision in North Carolina v. Alford, 400 U.S. 25 (1970). There, the Court held that a defendant could plead guilty while protesting his innocence so long as his plea was constitutionally valid. Alford, 400 U.S. at 31; see also ABA Standards, supra, at§ 141.1(a) commentary at 14.

People v. Darlington (Sup. Ct. Colo. 2005). (Slip Op. at 6-7).

As the Darlington Court goes on to clarify, "The sole distinction we have made between a guilty plea and a plea of nolo contendere is that the latter gives the defendant the advantage of not being estopped from denying her fault in a civil action based upon the same facts." (Slip. Op. at 8). This will give Armstrong the ability to deny liability in a civil trial if TEC or the trustees sue him civilly, but is otherwise a meaningless distinction. While he will not have to admit his guilt, he will have to admit that the prosecutor could adduce sufficient evidence to permit a jury to convict.

The Darlington Court further explains the purpose of deferred sentencing; it is "to grant the court the power to impose alternative sentences benefiting the defendant where the interests of justice would be served." (Slip Op. at 12). Many states have similar provisions to allow for the rehabilitation of a defendant whose guilt is provable, but the devastation of whose life wrought by full criminal conviction is excessive in light of the goals of the criminal justice system. (I authored, in 1994, a full length study of New York's "Interests of Justice" dismissal remedy, which you can find here).

In this case, it looks to me like the prosecutor was willing to give Armstrong a heavy break, but not a pass. Under the Agreement, he has to pay restitution in an amount to be set by the Court, which could obviate the need for any civil litigation. If he behaves for four years, he won't be a felon, with the attendant impact on career and civil rights that entails, but will be a convicted misdemeanant, an adjudicated criminal. This is actually a fairly reasonable resolution of the case; Lord knows I don't like Don Armstrong, but making him pay back the money while giving him a chance to resume his life, while holding him accountable to the law, and pronouncing the community's judgment on his actions seems to me to temper justice with mercy.

Of course, the prosecutor may use his parish's claim of vindication as evidence that he is not taking responsibility for his actions, and argue for a higher sentence within the range of the plea....so Armstrong may actually come to regret that misleading effort at spin.

A Glimpse Of Robertson

Thanks to the CBC, here is a clip of Robertson Davies, on critics:



I like this for two reasons. First, Davies' mischief peeps through for a moment there. You can see him thinking, "I'm on Telly, and do I really want to deliver the smackdown?" and then the answer: "Yes." Also,he's not wrong. Even the good critics can mess up a writer by luring the writer to aim for that critic. (John Mortimer has a great take on this in Rumpole and the Show Folk, where Rumpole's dramatic techniques are pointed out to him by a pro, and he then overdoes them). As for the bad critics. . . well, the less said the better.

Second, I remember attending a reading Davies gave, shortly before his death, and his seeing him younger was interesting--he had great presence, and the High Manner.

Just Say No

Rev. Mark Harris over at Preludium has informed us that the Episcopal Church is officially beginning it period of discernment as to whether it adopts the Anglican Covenant in what professes to be its final form.

We should vote it down, without hesitation or qualm.

The Covenant is intended as a means of punishing and/or expelling TEC. Rather than explain that, let me refer you to the writings of Fr. Harris and to the ruminations of Fr. Jake, starting here. Further analysis, albeit broad brush, here.

True though all of these objections are, the Covenant is more fundamentally an affront to Anglicanism's foundational ethos as formulated in both the 39 Articles and in the writings of Richard Hooker. Briefly, the Covenant reflects Canterbury's effort to "ride the tiger" of American far-right and Global South hostility to the decision of TEC to honor the ministry of our gay and lesbian brothers and sisters to reify a new creation: An international Anglican Church, rather than a loose confederation of churches, creating a Magisterium. More here.

The problem with all this is that, as Hooker makes clear in his Preface to the Laws of Ecclesiastical Polity, the evolution of churches in their places of planting reflects the needs of those among whom the church grows up and that even the means of organization may properly vary from place to place. Moreover, the foibles as well as the virtues of great figures (such as Calvin, in Hooker's time) may be reflected in not only their own churches, but those which adopt their teaching. Institutionally, local control and autonomy is a way of allowing for the correction of error, as discerned over time.

And that, not simple anti-Roman Catholic spite, is the justification for Article 37, stating that "The King's Majesty hath the chief power in this Realm of England, and other his Dominions, unto whom the chief Government of all Estates of this Realm, whether they be Ecclesiastical or Civil, in all causes doth appertain, and is not, nor ought to be, subject to any foreign Jurisdiction."

Simply put, the Anglican understanding has held, in delicate balance, the values catholicity and autonomy. Autonomy is necessary to prevent the handing down from on high of bulls which, as Hooker cautions, may result from the universalizing of an insight appropriate to one time and one place, or the over-veneration of a great leader, and simply force a solution to one locale's problem onto a different place and situation, creating a new problem.

The Anglican Covenant upsets that balance, and is indeed intended to do so, reducing the local scope of autonomy. Worst of all, it has no inherent limitation. As Hooker described the mounting demands of the Puritans from respect for conscience, to conformity, to the overthrow of all social institutions which would not conform to their will, the Covenant replaces the delicate balance of communion with a limitless perpetual synod with coercive power whose only limit is its own moderation. We may be expelled from the Communion, no doubt; but we should not sign our own death warrant.

Rock it, Man!

This morning's NY Times Magazine has a story on William Shatner, which mentions, among other things, that he was "The 23-year-old Shakespearean whom Sir Tyrone Guthrie called the Stratford Shakespeare Festival’s most promising actor."

Wait a damn second. Sir Tyrone Guthrie? Stratford Shakespeare Festival? In 1954?

Sure enough, that's the second year of the Festival, and wriiten up in a little-known work by that magus of Canada, Roberston Davies, in Twice Have The Trumpets Sounded, the second of Davies' accounts of the early years of the Festival, co-authored by Davies with Guthrie, lavishly illustrated by Grant McDonald. (And if I can find me a copy of Thrice the Brindled Cat Hath Mew'd (1955), I'll have 'em all, and my completist's heart will be at ease). Anyway, here is Davies on Shatner in The Taming of the Shrew:

Lucentio, the suitor of Bianca, is not ordinarily consdered a comic role, except in the classic sense that all lovers who do not die are figures of High Comedy. But William Shatner brought some of the gifts of the vaudevillian comedian to the part; his self-assured and somewhat brassy delivery of his first speech was itself a pleasant bit of comedy, and all through the play he gave a dimension of comedy to a character which can very easily be a romantic bore. In the company of players who performed The Shrew at the Lord's bidding, his rank was obviously that of First Light Comedian rather than First Walking Gentleman.

(Twice Have The Trumpets Sounded, at p. 50).

High praise from Davies, whose critical faculties were razor-sharp. The sketch of Shatner in role on page 51 is very reminsicent of a James Dean in his prime--and, a bit oddly, of a picture I've seen of my own father as a young man).

Shatner is often dismissed as a media phenomenon whos has made himself into a cult figure by straddling the two worlds of fandom and self-parody. And in fact, that's true. It's also true, though, that the actor playing the role of William Shatner has more native talent than one might think, and the man behind the masque is not necessarily the joking figure he portrays.

I think.