The Watcher Cat

The Watcher Cat

Monday, January 19, 2009

On the Edge of History

At the close of Martin Luther King Day, and on the night before Barack Obama is to be inaugurated, I heard the 1963 speech known as the "I have a dream" speech read aloud. On the day before our new president takes the oath of office, and shatters forever the legacy of slavery, far though we have to go in other respects, I thought of those who came before, and did not make it to this milepost.

I thought especially of my old mentor from Columbia Law School, Charles L. Black, who grew up in deeply segregated Texas, set out on the path that led him to serve in the NAACP litigation team of Brown v. Board of Educ. when, at age 16, he heard Louis Armstrong play:
He was the first genius I had ever seen. That may be a structurable part of the process that led me to the Brown case… . The moment of first being, and knowing oneself to be, in the presence of genius, is a solemn moment; it is perhaps the moment of final and indelible perception of man’s utter transcendence of all else created. It is impossible to overstate the significance of a 16-year-old Southern boy’s seeing genius, for the first time, in a black. We literally never saw a black, then, in any but a servant’s capacity. There were of course black professionals and intellectuals in Austin, as one later learned, but they kept to themselves, out back of town; no doubt shunning humiliation. I liked most of the blacks I knew; I loved a few of them–like old Buck Green, born and raised a slave, who still plays the harmonica through my mouth, having taught me when he was 75 and I was 10. Some were honored and venerated, in that paradoxical white-Southern way… . But genius–fine control over total power, all height and depth, forever and ever? It had simply never entered my mind, for confirming or denying in conjecture, that I would see this for the first time in a black man… .

That October night, I was standing in the crowd with a “good old boy” from Austin High. We listened together for a long time. Then he turned to me, shook his head as if clearing it–as I’m sure he was–of an unacceptable though vague thought, and pronounced the judgment of the time and place: “After all, he’s nothing but a God damn nigger!”

The good old boy did not await, perhaps fearing, reply. He walked one way and I the other. Through many years now, I have felt that it was just then that I started walking toward the Brown case, where I belonged… . Every person of decency in the South of those days must have had some doubts about racism, and I had had mine even then–perhaps more than most others. But Louis opened my eyes wide, and put to me a choice. Blacks, the saying went, were “all right in their place.” What was the “place” of such a man, and of the people from which he sprung?”

From "My World With Louis Armstrong" by C.L. Black, Jr. (Kudos to another professor of mine, Eben Moglen, for making this piece available online!)

At a victory dinner celebrating the Supreme Court's decision in Brown, Thurgood Marshall, who spearheaded the charge, and argued the case brilliantly, recognized "Charlie Black, a white man from Texas, who's been with us all the way!" It was in the spirit of Dr. King, who stated unequivocally, "we cannot walk alone."

Professor Black never forgot his debt; continuing a tradition from his many years at Yale, he hosted at Columbia annual Louis Armstrong evenings when students were invited to hear the classic Armstrong 78s and listen to CLB reminisce about Thurgood Marshall, life in the law, including the need for a life beyond the law. But the music and its meaning was key.

Justice Marshall, and all who worked with him, including Charles Black, were following the path laid out by the man we honor today, whose greatest speech shone a light down the corridors of history, and the next step of which we take tomorrow.

Tonight, pause. Hear it, see it for yourself. And celebrate the dream's beginning.

Censored by HBO

The broadcast of the Inaugral Concert yesterday omitted the Rt. Rev. Gene Robinson's Invocation. Fortunately bloggers do not take well to censorship:

From the Politico:
There is something a bit intuitively objectionable about barring other networks and random citizens from pointing their cameras at a public event like this on the Mall, and effectively prevent the broadcast of a key public part fo the event, though the Inaugural Committee argues that selling the exclusive rights were the only way to pay for the extravaganza in tough economic times.
Yeah. Well done Christianity Today.

Wednesday, January 14, 2009

Decision in Diocese of Central New York v. Church of the Good Shepherd

As I promised yesterday, I was on the lookout for the official posting of the decision granting the Diocese possession of the parish and its assets. It's remarkably short (nine pages in total), and at the risk of seeming pleased with myself, went almost exactly along the lines I sketched out here. As I predicted, it relied heavily on the recent decision of the state Court of Appeals in Episcopal Diocese of Rochester v. Harnish.

As I had suggested would take place, the court rejected CGS's contention that the Dennis Canon was not effectively enacted based on the constitutional impediment to judicial scrutiny of ecclesiastical polity:
In any event, even without Harnish as a controlling precedent, this Court is prohibited from reviewing whether The Episcopal Church properly enacted the Dennis Canon in 1979. It is well settled that this or any court cannot intervene in purely ecclesiastical or religious concerns such as religious governance or polity. Suffice it to say that if Good Shepherd has an objection to the validity of the Dennis Canon, the remedy is not with the courts, but rather with the General Convention of The Episcopal Church.
Id. at 6 (citations and quotation marks omitted).

So other than burnishing my crystal ball, is there any reason for my pointing this out? Yes; this result was eminently predictable. A string of intermediate appellate court decisions from 1999 to Harnish itself had applied the rule of Jones v. Wolf to disputes within the Episcopal Church to uphold and apply the Dennis Canon. Those cases stem from the Court of Appeals' adoption of Jones in 1984. In other words, under a quarter of a century of unbroken precedent from the state's highest court and intermediate appellate courts, the result was as preordained as a Calvinist's view of destiny. The Will to Believe, misdirected, can lead to the assumption of terrible risks.

Tuesday, January 13, 2009

Update on CGS

According to Fr. Matt Kennedy, the Supreme Court of the State of New York (by a fluke of state history, that's a trial court) has found in favor of the diocese, and has awarded possession of the church property to it.

I have not yet received, courtesy of e-courts, a copy of the opinion and order, but will summarize it when I do.

Wednesday, January 7, 2009

Litigation, Paradox and Charity

So the Supreme Court of California has ruled unequivocally in favor of TEC's claim to the church property the so-called realigning parishes endeavored to take with them.

The Supreme Court's ruling was consistent with the Supreme Court decision Wolf v. Jones (excerpted here; full text here), as well as the New York state caselaw discussed here:
But when called on to resolve church property disputes, secular courts must not entangle themselves in disputes over church doctrine or infringe on the right to free exercise of religion. In this regard, the United States Supreme Court has made two points clear: (1) how state courts resolve church property disputes is a matter of state law; but (2) the method a state chooses must not violate the First Amendment to the United States Constitution.


Defendants focus on the high court’s reference to what the “parties” can do, and argue that Canon I.7.4, to be effective, had to have been enacted by the parties — in other words, that some kind of agreement must have been reached between the general church and St. James Parish (and presumably every other parish in the country) ratifying Canon I.7.4. We do not so read the high court’s words. Use of the passive voice in describing the possible “alternative[]” of making the general church’s constitution recite the trust suggests the high court intended that this could be done by whatever method the church structure contemplated. Requiring a particular method to change a church’s constitution — such as requiring every parish in the country to ratify the change — would infringe on the free exercise rights of religious associations to govern themselves as they see fit. It would impose a major, not a “minimal,” burden on the church governance. (Jones v. Wolf, supra, 443 U.S. at p. 606.)
Thus, the high court’s discussion in Jones v. Wolf, supra, 443 U.S. at page 606, together with the Episcopal Church’s adoption of Canon I.7.4 in response, strongly supports the conclusion that, once defendants left the general church, the property reverted to the general church. Moreover, Canon I.7.4 is consistent with earlier-enacted canons that, although not using the word “trust,” impose substantial limitations on the local parish’s use of church property and give the higher church authorities substantial authority over that property. For example, permitting a disaffiliating local church to take the property with it when it reaffiliates with a different church is inconsistent with the prohibition of Canon II.6, section 2, against encumbering or alienating local property without the previous consent of higher church authorities. Defendants argue that such a reading of section 9142 “would unconstitutionally promote and establish denominational religion.” We need not, indeed, cannot consider all possible applications of section 9142, but as applied here, the section is fully consistent with Jones v. Wolf, supra, 443 U.S. at page 606, and promotes the free exercise rights of persons to form and join a religious association that is constructed and governed as they choose. Defendants also suggest that the Episcopal Church did not properly adopt Canon I.7.4 under its own rules. It is a bit late to argue that Canon I.7.4 was not effectively adopted, a quarter of a century later, and, in light of the consistent conclusions of the out-of-state cases that that canon is, indeed, part of the Episcopal Church’s governing documents, the argument seems dubious at best. But, in any event, this is one of those questions regarding “religious doctrine or polity” (or, as we phrased it in Catholic Charities of Sacramento, Inc. v. Superior Court, supra, 32 Cal.4th at page 541, “religious doctrine and internal church governance”) on which we must defer to the greater church’s resolution. (Jones v. Wolf, supra, 443 U.S. at p. 602.)
And that, of course, is exactly why the secessionists should lose: their arguments require the courts to scrutinize church hierarchy and organization, and strip away the flexibility mandated by Wolf. (The California Supreme Court's rationale regarding the Dennis Canon is essentially the view I've argued in opposition to the position of the Church of the Good Shepherd, linked above). It's why I also believe the Virginia lower court decision in favor of CANA cannot stand.

As I explained here:
The High Court has long recognized that church polity has theological underpinnings, and thus the Free Exercise Clause impacts the ability of the federal and of the state governments to interfere with it. The reason why pre-1920s state statutes often do not respect this line is that prior to Gitlow v. New York 1925), the Fourteenth Amendment had not been read to apply the First Amendment to the states, and thus states had plenary power over religious bodies within their borders. See Permoli v. First Mun., City of New Orleans (1845)("The Constitution makes no provision for protecting the citizens of the respective states in their religious liberties; this is left to the state constitutions and laws. Nor is there any inhibition imposed by the Constitution of the United States in this respect on the states.")
Such pre-1925 statutes are almost certainly unconstitutional, and decisions upholding them that do not address incorporation, are without precedential value.


So what can I, a "reappraiser" say about both sides, when their anger is at a pitch, and charity is scarce on the ground. How in particular to speak with those with whom I fervently disagree, and who are feeling loss today? Perhaps I may point to a paradox, and ask both sides to take some comfort from it. First, the paradox. Both sides are standing up for what they believe, sincerely, I am sure. TEC has risked (and continues to risk) expulsion from the global Anglican Communion. The secessionists (sorry; I'll take a better term if there is one) have risked, and are losing, more often than not, spiritual homes which they love.

Both, in short, whatever one may think of the results of their discernment--and I know which side I believe has it right--have avoided the trap pointed out a century ago by F.C. Burkett:
As long as we believe in our hearts that our property, our arts, our institutions, our buildings, our trust-deeds are the most permanent things in the world, so long we are not in sympathy with the gospel message.
"The Eschatological Idea in the Gospel," in Cambridge Biblical Essays (1909) at 211.

Monday, January 5, 2009