tag:blogger.com,1999:blog-2827071479314474893.post6200248694041814029..comments2024-01-31T22:47:47.791-08:00Comments on Anglocat on the Prowl: Confessions of a Continuator: A Question of Interpretation: The Virginia DecisionAnglocathttp://www.blogger.com/profile/03218740053628978255noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-2827071479314474893.post-63669176442558381262008-04-07T18:12:00.000-07:002008-04-07T18:12:00.000-07:00Many thanks for the kind words. I like your analys...Many thanks for the kind words. <BR/><BR/>I like your analysis, especially your defense of counsel's fighting on "division." <BR/><BR/>The benefit you point to, I think, might equally well have been achieved by doing a two point motion--first, the statute did not mean what the CANA-ites read it to mean, and second, the statute if it did mean that, it violates the First Amendment. <BR/><BR/>SMore to your point, I think if I did want to argue the statutory point, (now I'm a Monday evening quarterback), I'd have been tempted in arguing the statute doesn't apply to focus much more on the "entire independence" and "religious society" points, using religious groups like the Quakers, and other congregational affiliations to raw a contrast with the hierarchical polity of the self-standing TEC. <BR/><BR/>But, as I acknowledged in my post, that may be somewhat academic--the statute as interpreted here does seem to force any kind of church in relationship with another into a congregationl polity--with all the disastrous effects you note. Our best hope stemming from this is that I do believe the statute does contravene Jones v. Wolf, and is, unless we get a whole new interpretation of the First Amendment in the religious context. One hopeful point: The Court is chafing at the edges of its religion clause jurisprudence--but seeking to free up churches, not, I think (pace Justice Thomas), for more state intervention.<BR/><BR/>But, of course, I could be wrong...<BR/><BR/>Again, thanks for your thought-provoking commentary.Anglocathttps://www.blogger.com/profile/03218740053628978255noreply@blogger.comtag:blogger.com,1999:blog-2827071479314474893.post-673525351942168502008-04-07T09:05:00.000-07:002008-04-07T09:05:00.000-07:00Thank you for this. You clarified one point I was...Thank you for this. You clarified one point I was not certain about after my own reading when later I read this excerpt from the Washington Post article quoted in <A HREF="http://www.episcopalcafe.com/lead/anglican_communion/judge_rules_advantage_cana.html" REL="nofollow"> The Lead</A>:<BR/><BR/><I>"Scott Ward, an attorney for several of the congregations, noted that the state statute calls itself "conclusive" and said that might ultimately render a fall trial unnecessary.<BR/><BR/>But Henry Burt, a spokesman for the diocese, said his side believes that ownership of church property is determined by other things, including a denomination's laws and deeds and the history of how the property has been managed and controlled over time.</I>"<BR/><BR/>The parts of the opinion you quote distinguishing parts A and B of the statute (esp. at p. 48) indicate that the judge has pretty much foreclosed Mr. Burt's view as a possible way of interpreting and applying the statute -- assuming it passes constitutional muster.<BR/><BR/>Some further thoughts of my own: First, you suggested that the TEC lawyers erred by putting so much of their "firepower" into the "division" argument. While I have no way of knowing what their litigation strategy was and is, I wonder if the result was strategically far better than if the court found there was no division, in fact, based on the argument that in a hierarchal church like TEC, there can be no division but one acknowledged and accepted at the top (which, as you point out, would not likely be the kind to create a dispute requiring use of this statute). In other words, if the trial court were to have decided that "division" meant entirely different things depending on the nature of the church or society involved (i.e. of the kind that would not fall under part B of the statute) -- do you not think that most clear-thinking appellate court judges would reject that kind of interpretation of the statute? The text does not call for determination of exceptions or categorizing churches any way other than those given for A and B. And the whole argument that "that's not how we do things/ what we believe" etc. seems to go to the heart of the constitutional argument, not that the legislature, in effect, could not possibly have intended to interfere in our churches or keep us from following our rules and customs.<BR/><BR/>Now, as a practical matter, TEC lawyers could not do anything but make the argument on "division" (it simply would not do to simply concede at the outset that the statute generally applied but nevertheless was unconstitutional) -- and it sounds to me that they made the best argument they could. But I think it actually helps them to have gotten this ruling and to have gotten it first, before the constitutional arguments were made, because it seems to me that the devil is in the details, so to speak. While it may be that appellate court judges (state or U.S.) will not be outraged at what the statute does, if they might be so persuaded, as they should, how better to incite them than with this ruling? So isn't it really, as John Chilton suggested at The Lead, advantage TEC rather than CANA at this point? <BR/><BR/>I say this fully aware of the fact that the "branch" part of the court's analysis is most disturbing and seems to be grossly inaccurate as it applies to the relationships among the Anglican Communion, TEC, Nigeria, DOV, CANA, etc. A couple further comments on that. <BR/><BR/>First, when I was reading, I was not entirely sure that the judge was necessarily agreeing with the CANA folks that they are a branch of this or that. It's not that he was rejecting their claims, either, but it seemed to me that his analysis was premised on the notion that it doesn't matter what anyone thinks of the legitimacy of the "branch" or its relations to the other parts, as long as there are the three "occurrences" listed on p. 81: (1) a "split" or "rupture" in a religious denomination, (2) the separation of a group of congregations, clergy, or members from the church, and (3) the formation of an "alternative polity that disaffecting members could join." <BR/><BR/>It seemed to me that in discussing (1) and (3), the judge covered all the different ways it could be viewed in this particular case -- split within the congregation, within the diocese, within the national church, within the Anglican Communion and an alternative structure that may or may not be characterized as part of another part of the AC or as part of part that has split from the AC. The overall point of the discussion seemed to be that there was ample evidence of some kind of split or rupture, no matter where one stands, and since there appeared to be some kind of viable alternative structure or polity to which the congregations have sought to attach, it didn't matter how large the split, who recognized it as effective, whether it was legal or legitimate within the rules and customs of the mother church -- DOV, TEC or the AC. Therefore, DOV and TEC did not necessarily fail to make the judge see how *we* are constituted and operate -- from his perspective, he was not called upon to decide that but rather throw out all the different possible characterizations of what occurred, all of which could be viewed as "division" followed by detachment and reattachment to some other "branch," even if the "branch" is a new group of dissidents, aligned to a new polity created by themselves and/or attached to another kind of branch such as the Anglican Church of Nigeria.<BR/><BR/>Second, this view of "branch" strikes me as how the statute must be interpreted and applied if one is to go by its general terms and the logic of its provisions (and not read into it the original historical setting or post-legislative intent in light of the recent amendments that failed). The fact that it does such violence to TEC and any other church to whom it might apply comes from the terms of the statute itself. <BR/><BR/>What is rather shocking about it is that it says that any congregation or parish that does not fall under part B can at any time decide, by a simple majority, to abandon its "attachments" with the larger church or "society," take ALL THE PROPERTY with that group, and reattach itself to any other group with any kind of organization structure (as long as one can prove the "polity" exists -- 3 men and a website come to mind -- but presumably a "real" polity would not be hard to create, as well). The statute does not say how one determines a majority of the "whole number," how often a vote can be taken and a petition filed to detach and reattach elsewhere, let alone how one decides whether a "branch" exists (i.e. aside from the 3 "occurrences," to what extent must a branch resemble or take a name similar to the original -- though the facts of the current case do not really test the outer parameters of "branch" in that sense).<BR/><BR/>The statute itself is therefore terribly intrusive on the affairs of any church that might fall under part A -- not just strongly hierarchal ones like TEC. It doesn't just provide a legal mechanism for civil society to recognize the status quo; rather it creates one that easily can be used to cause schism and to transfer property whenever a simple majority can be assembled and maintained for the duration of the lawsuit. And once divided, wouldn't control over the property mean that the "winning" side can keep the others from continuing to attend? Or is the statute intended to have local churches look like the cottage in Disney's Sleeping Beauty -- wands firing right and left, poof it's pink, poof it's blue, American, Nigerian, Argentinian until the whole place explodes or collapses from all that expended firepower.<BR/><BR/>(Sorry - this Monday a.m. quarterback is in hurried discursive mode -- in stark contrast to your carefully outlined analysis. My apologies).<BR/><BR/>In any event, I think we agree that there are serious constitutional problems with the statute as interpreted and applied by the trial court judge. It will be interesting to see how the judges up and down the line will respond to the constitutional issues.kladyhttps://www.blogger.com/profile/09526715552795733402noreply@blogger.com