I'm reading, with great interest, the late Fr. Raymond Brown's two volume translation and commentary on the Gospel According to John, part of the Anchor Bible.
I'm up to page 146.
OK, I'm not. I just finished the Introduction, which means I'm up to page cxlvi.
Note to future editors: when your introduction is closing in on 150 pages, Roman numerals lose their antiquarian charm. Not to mention finding a page reference to an idea you suddenly want to revisit--"oh, that was an interesting point questioning Bultmann's theory about the Ecclesiastical Redactor; was it on page lviii or was that cxxiii?"
At least (unlike the original readers) I didn't have to wait four years for the index to be published, along with volume two.
Wednesday, April 9, 2008
Sunday, April 6, 2008
A Question of Interpretation: The Virginia Decision
On Friday, April 4, as most are already aware, Judge Randy Bellows issued an 88 page ruling in which the judge found that Section 57-9 of the Virginia Code, entitled "How Property Rights Determined on Division of Church or Society applied to the dispute between the Episcopal parishes that have purportedly seceded to the Church of Nigeria by joining CANA. Judge Bellows did not determine whether the statute, on its face or as applied to this dispute, is consistent with the First Amendment to the U.S. Constitution; nor did he determine who properly has title to the various church buildings and associated property.
The Anglican blogosphere is of course rife with comment on this decision; I'll try to confine my review of it to legal analysis, as my personal views on the CANA secession have already been set out in prior posts.
1. Read the Statute
Felix Frankfurter, prior to his appointment to the Supreme Court, used to tell his students at Harvard that there were three steps in statutory interpretation: read the statute. Read the Statute. READ THE STATUTE. This is an oversimplification, of course. When a statute is not clear, resort may be had to legislative history--documents or transcripts of debates on the part of the body enacting the statute that can clear up what the legislators believed they were passing, or prior judicial interpretations. (At the risk of shamelessly promoting my own work, I provide a fuller analysis of these principles in the introduction to my 2004 book on the First Amendment).
So let's begin with the statutory text, with thanks to KLady for the link:
2. Battle of the Experts
The statute was enacted, according to the court, in substantially its present form in 1867. (Opinion at 49, n. 37). According to the court's summary of CANA's expert witness testimony, the occasion for its enactment was a series of schisms within the Presbyterian and Methodist Churches,which led to claims and counterclaims over property possession. (Opinion at 49-53 (Valeri); 54-57 (Irons)). The Methodist Church's struggles, in particular, led to the passage of the statute. Id. Although Judge Bellows noted the existence of "much testimony" concerning the separation between the TEC parishes in the Confederacy and those in the Union during the Civil War, he found no particular guidance from such testimony, as the existence of any division other than a geographical decision was unclear. (Opinion at 53, n. 44). From Judge Bellow's summary, TEC's expert witnesses did not address the circumstances of the enactment of the statute, but testified that, in Episcopal Church governance, a "division" is only one that is recognized as legitimate by the church authorities, and that they provided testimony as to the nature of relations between TEC and the remainder of the Anglican Communion. (Opinion at 63, 57-63).
Judge Bellows was clearly more impressed with the specificity with which CANA's experts addressed their testimony to the Virginia statute's passage and early application; TEC's more holistic approach from the perspective of Episcopal polity did not seem to him persuasive. Regrettably, I see his point. The problem here is not whether the division is one "recognized" by TEC, or acquiesced in by it--we'd hardly have a litigation if that was the case. Rather, the question is what the Virginia General Assembly meant by the terms at issue, and, under those terms whether the events at hand constitute a "division" within a "church" or "religious society" constituting "branches," one of which the dissentient parishes have moved to join. By finding the Anglican Communion constitutes a "religious society" (at least; it might also equate with a church), and that TEC's affiliation with it means that it is not "entirely independent", the court concluded that deference to TEC's "constitution, ordinary practice, or custom", which is only provided to such "entirely independent churches, was not warranted here. (Opinion at 48; 76). Put differently, because the court found that the Anglican Communion was a "religious society" of which TEC, the ADV and the Church of Nigeria were branches, the court dispensed with any deference to TEC's canons and polity, and found that the statute as interpreted mandatorily awards the property to the local congregation.
TEC appears to have focused most of its firepower on the question of "division," which, speaking as a Monday morning quarterback, seems profoundly in error. Simply put, that term, in its "plain meaning" seems to be clearly applicable, and the effort to limit the statute to amicable partings appears foredoomed.
The court is on shakier ground when it treats the AC as a "religious society" in the statutory terms; Judge Bellows undestandably relied on TEC's expert's concession that a "religious society" can denote a "much looser federation" and on the description of the Archbishop of Canterbury as "President" and "chief pastor." Despite this, I think his analysis is dangerously close to a judicial ruling structuring ecclesiastical polity. (see pt. 3, below). In view of TEC's expert's concession--a point I had not focused on in my first blush reading, after which I commented here and here, I see why Judge Bellows was led to the conclusion he reached. Still, by this broad definition, a good case could be made that the World Council of Churches would fit it--which would, I suspect, make for some interesting litigation possibilities.
More to the point, the reading of the statute to include the Anglican Communion as a religious society, and TEC and the CoN as branches thereof works a forfeiture of a church's ability to order property relations when there is any tie to other churches, a significant statutory disincentive to ecumenicism, or even ecumenical collaboration. The statute as read would polarize churches, either requiring total segregation from each other, or eliminating ecclesiastical polity in favor of legislatively mandated congregationalism. My first reading, linked above, was that the General Assembly could not have meant this result; upon a second reading of the Opinion, I'm not so sure.
3. The Statute and the First Amendment
The First Amendment's guarantees, explicitly imposed only upon Congress, have been deemed to have been incorporated (made enforceable) against the states by the Fourteenth Amendment, first noted in Gitlow v. New York, 268 U.S. 652 (1925). The incorporation doctrine was first applied to the Establishment Clause and Free Exercise Clause in Everson v. Bd. of Educ., 330 U.S. 1 (1947). For over 60 years, though questioned by some such as Justice Thomas, the Supreme Court has held in an unbroken chain of precedent that the states cannot make laws respecting an establishment or religion any more than can Congress--nor can they inhibit its free exercise.
In Jones v. Wolf, 443 U.S. 595, 602-603(1979), the Supreme Court held that:
As of 2007, Jones v. Wolf remains good law. See, e.g., Matter of Congregation Yetev Lev D'Satmar, Inc. v Jacob (Ny Ct. App. 2007). Therefore, while I think that the interpretation of section 57-9 may stand up on appeal, I believe that its constitutionality is very open to question, and could only be upheld by subjecting religious bodies to significant state and federal interference in their internal polity and doctrine.
The Anglican blogosphere is of course rife with comment on this decision; I'll try to confine my review of it to legal analysis, as my personal views on the CANA secession have already been set out in prior posts.
1. Read the Statute
Felix Frankfurter, prior to his appointment to the Supreme Court, used to tell his students at Harvard that there were three steps in statutory interpretation: read the statute. Read the Statute. READ THE STATUTE. This is an oversimplification, of course. When a statute is not clear, resort may be had to legislative history--documents or transcripts of debates on the part of the body enacting the statute that can clear up what the legislators believed they were passing, or prior judicial interpretations. (At the risk of shamelessly promoting my own work, I provide a fuller analysis of these principles in the introduction to my 2004 book on the First Amendment).
So let's begin with the statutory text, with thanks to KLady for the link:
A. If a division has heretofore occurred or shall hereafter occur in a church or religious society, to which any such congregation whose property is held by trustees is attached, the members of such congregation over 18 years of age may, by a vote of a majority of the whole number, determine to which branch of the church or society such congregation shall thereafter belong. Such determination shall be reported to the circuit court of the county or city, wherein the property held in trust for such congregation or the greater part thereof is; and if the determination be approved by the court, it shall be so entered in the court's civil order book, and shall be conclusive as to the title to and control of any property held in trust for such congregation, and be respected and enforced accordingly in all of the courts of the Commonwealth.As Judge Bellows explained, however, Virginia follows what is known as the "plain meaning rule," which employs the ordinary use of terms employed in a statute as of the date of enactment, and does not presume technical usage particular to any one context. (Opinion 47-49).
B. If a division has heretofore occurred or shall hereafter occur in a congregation whose property is held by trustees which, in its organization and government, is a church or society entirely independent of any other church or general society, a majority of the members of such congregation, entitled to vote by its constitution as existing at the time of the division, or where it has no written constitution, entitled to vote by its ordinary practice or custom, may decide the right, title, and control of all property held in trust for such congregation. Their decision shall be reported to such court, and if approved by it, shall be so entered as aforesaid, and shall be final as to such right of property so held.
2. Battle of the Experts
The statute was enacted, according to the court, in substantially its present form in 1867. (Opinion at 49, n. 37). According to the court's summary of CANA's expert witness testimony, the occasion for its enactment was a series of schisms within the Presbyterian and Methodist Churches,which led to claims and counterclaims over property possession. (Opinion at 49-53 (Valeri); 54-57 (Irons)). The Methodist Church's struggles, in particular, led to the passage of the statute. Id. Although Judge Bellows noted the existence of "much testimony" concerning the separation between the TEC parishes in the Confederacy and those in the Union during the Civil War, he found no particular guidance from such testimony, as the existence of any division other than a geographical decision was unclear. (Opinion at 53, n. 44). From Judge Bellow's summary, TEC's expert witnesses did not address the circumstances of the enactment of the statute, but testified that, in Episcopal Church governance, a "division" is only one that is recognized as legitimate by the church authorities, and that they provided testimony as to the nature of relations between TEC and the remainder of the Anglican Communion. (Opinion at 63, 57-63).
Judge Bellows was clearly more impressed with the specificity with which CANA's experts addressed their testimony to the Virginia statute's passage and early application; TEC's more holistic approach from the perspective of Episcopal polity did not seem to him persuasive. Regrettably, I see his point. The problem here is not whether the division is one "recognized" by TEC, or acquiesced in by it--we'd hardly have a litigation if that was the case. Rather, the question is what the Virginia General Assembly meant by the terms at issue, and, under those terms whether the events at hand constitute a "division" within a "church" or "religious society" constituting "branches," one of which the dissentient parishes have moved to join. By finding the Anglican Communion constitutes a "religious society" (at least; it might also equate with a church), and that TEC's affiliation with it means that it is not "entirely independent", the court concluded that deference to TEC's "constitution, ordinary practice, or custom", which is only provided to such "entirely independent churches, was not warranted here. (Opinion at 48; 76). Put differently, because the court found that the Anglican Communion was a "religious society" of which TEC, the ADV and the Church of Nigeria were branches, the court dispensed with any deference to TEC's canons and polity, and found that the statute as interpreted mandatorily awards the property to the local congregation.
TEC appears to have focused most of its firepower on the question of "division," which, speaking as a Monday morning quarterback, seems profoundly in error. Simply put, that term, in its "plain meaning" seems to be clearly applicable, and the effort to limit the statute to amicable partings appears foredoomed.
The court is on shakier ground when it treats the AC as a "religious society" in the statutory terms; Judge Bellows undestandably relied on TEC's expert's concession that a "religious society" can denote a "much looser federation" and on the description of the Archbishop of Canterbury as "President" and "chief pastor." Despite this, I think his analysis is dangerously close to a judicial ruling structuring ecclesiastical polity. (see pt. 3, below). In view of TEC's expert's concession--a point I had not focused on in my first blush reading, after which I commented here and here, I see why Judge Bellows was led to the conclusion he reached. Still, by this broad definition, a good case could be made that the World Council of Churches would fit it--which would, I suspect, make for some interesting litigation possibilities.
More to the point, the reading of the statute to include the Anglican Communion as a religious society, and TEC and the CoN as branches thereof works a forfeiture of a church's ability to order property relations when there is any tie to other churches, a significant statutory disincentive to ecumenicism, or even ecumenical collaboration. The statute as read would polarize churches, either requiring total segregation from each other, or eliminating ecclesiastical polity in favor of legislatively mandated congregationalism. My first reading, linked above, was that the General Assembly could not have meant this result; upon a second reading of the Opinion, I'm not so sure.
3. The Statute and the First Amendment
The First Amendment's guarantees, explicitly imposed only upon Congress, have been deemed to have been incorporated (made enforceable) against the states by the Fourteenth Amendment, first noted in Gitlow v. New York, 268 U.S. 652 (1925). The incorporation doctrine was first applied to the Establishment Clause and Free Exercise Clause in Everson v. Bd. of Educ., 330 U.S. 1 (1947). For over 60 years, though questioned by some such as Justice Thomas, the Supreme Court has held in an unbroken chain of precedent that the states cannot make laws respecting an establishment or religion any more than can Congress--nor can they inhibit its free exercise.
In Jones v. Wolf, 443 U.S. 595, 602-603(1979), the Supreme Court held that:
the First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes." [Presbyt. Church v. Hull Church, 393 U.S. 440,449 1969]. Most importantly, the First Amendment prohibits civil courts from resolving church property disputes on the basis of religious doctrine and practice. Serbian Orthodox Diocese v. Milivojevich, 426 U. S. 696, 710 (1976); Maryland & Va. Churches v. Sharpsburg Church, 396 U. S. 367, 368 (1970); Presbyterian Church I, 393 U.S. at 449. As a corollary to this commandment, the Amendment requires that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization. Serbian Orthodox Diocese, 426 U.S. at 724-725; cf. [Watson v. Jones], 80 U. S. [679],733-734 (1872).Simply put, the Viginia statute, as applied here, eliminates the flexibility relied upon by the Supreme Court in validating neutral principles, and, what is worse, requires the trial court to parse polity carefully (and, I think in a manner that is heavily slanted in favor of legally mandated congregationalism, as described above). Another saving quality alluded to by the Supreme Court is extinguished by the court's reading of the statute--that is, the ability of a church to plan for any divisions or schisms, and in advance determine these questions. The Virginia statute takes that ability away as well, and, as construed by Judge Bellows, I believe 57-9 contravenes the scope of permissible adjudication of property disputes as set forth in Jones v. Wolf.
...
The primary advantages of the neutral principles approach are that it is completely secular in operation, and yet flexible enough to accommodate all forms of religious organization and polity. The method relies exclusively on objective, well established concepts of trust and property law familiar to lawyers and judges. It thereby promises to free civil courts completely from entanglement in questions of religious doctrine, polity, and practice. Furthermore, the neutral principles analysis shares the peculiar genius of private law systems in general -- flexibility in ordering private rights and obligations to reflect the intentions of the parties. Through appropriate reversionary clauses and trust provisions, religious societies can specify what is to happen to church property in the event of a particular contingency, or what religious body will determine the ownership in the event of a schism or doctrinal controversy.
As of 2007, Jones v. Wolf remains good law. See, e.g., Matter of Congregation Yetev Lev D'Satmar, Inc. v Jacob (Ny Ct. App. 2007). Therefore, while I think that the interpretation of section 57-9 may stand up on appeal, I believe that its constitutionality is very open to question, and could only be upheld by subjecting religious bodies to significant state and federal interference in their internal polity and doctrine.
Tuesday, April 1, 2008
Defamation, Dissonance and Defense
I had been getting set to praise deposed former Bishop William Cox for his candor, based on this statement:
But, alas, the good bishop (well, in Argentina, at any rate), appears to have lawyered up, and is now claiming that the Presiding Bishop's announcement of the House of Bishops' deposition of him, based on a charge the truth of which truth he freely admitted to the press, has somehow defamed him--because of the alleged procedural defects in the deposition process.
OK, I've litigated defamation cases and, I have to say, I'm not getting it. A statement cannot be deemed defamatory unless it is a false statement that purports to be factual, and is discreditable to the subject. See Philadelphia Newsp., Inc. v. Hepp, 475 U.S. 767, 776 (1986). But where's the falsity, or the defamatory content?
The lack of a defamatory statement--an untrue statement reflecting discredit on Bishop Cox--seems clear to me; the only conduct imputed to the bishop is that he has abandoned the communion of the Episcopal Church, and he has explicity admitted that such is the case. As to the alleged falsity stemming from the alleged flaws in the deposition process, the fact remains that the House of Bishops passed a resolution deposing him, by a formal vote on March 12. The claim, even if true, that the deposition was not in accordance with canon law, does not, of its own weight, render the statement factually untrue. The deposition would first need to be declared void--not merely reversed--by a body of competent jurisdiction. I am unaware of any body that could render such a declaration, and would be inclined to do so. The HOB could, I suppose, reverse itself, but that would not render the PB's statements false as of the date she made them. I'm not aware of any other body that could properly assert jurisdiction to declare the deposition void ab initio. I find it hard to believe that the civil courts would rule on such a question. This is particularly the case because, as I pointed out in my last post, the First Amendment prohibits courts from ruling on "purely religious concerns such as church governance or polity." See also Wolf v. Jones, 443 U.S. 595 (1979).
I will await with interest developments; either the pleadings in the threatened defamation suit, which will be instructive, at a minimum, or the good bishop's climbing down from the threat.
"I feel sorry that they felt they needed to do this," he said. "A more charitable thing to do would be to say, 'We recognize that you are now a member of the church in Argentina and ask God's blessing on your ministry.'" . . . A trial was never held, but the House of Bishops voted him out Wednesday for abandoning the communion of the church.What a change from the obfuscation of the deposed bishop John-David Schofield, or for that matter, Rev. Robert Eaton who is, we think, within TEC, while linking to the website of the Southern Cone.
"Which I did," Cox said.
But, alas, the good bishop (well, in Argentina, at any rate), appears to have lawyered up, and is now claiming that the Presiding Bishop's announcement of the House of Bishops' deposition of him, based on a charge the truth of which truth he freely admitted to the press, has somehow defamed him--because of the alleged procedural defects in the deposition process.
OK, I've litigated defamation cases and, I have to say, I'm not getting it. A statement cannot be deemed defamatory unless it is a false statement that purports to be factual, and is discreditable to the subject. See Philadelphia Newsp., Inc. v. Hepp, 475 U.S. 767, 776 (1986). But where's the falsity, or the defamatory content?
The lack of a defamatory statement--an untrue statement reflecting discredit on Bishop Cox--seems clear to me; the only conduct imputed to the bishop is that he has abandoned the communion of the Episcopal Church, and he has explicity admitted that such is the case. As to the alleged falsity stemming from the alleged flaws in the deposition process, the fact remains that the House of Bishops passed a resolution deposing him, by a formal vote on March 12. The claim, even if true, that the deposition was not in accordance with canon law, does not, of its own weight, render the statement factually untrue. The deposition would first need to be declared void--not merely reversed--by a body of competent jurisdiction. I am unaware of any body that could render such a declaration, and would be inclined to do so. The HOB could, I suppose, reverse itself, but that would not render the PB's statements false as of the date she made them. I'm not aware of any other body that could properly assert jurisdiction to declare the deposition void ab initio. I find it hard to believe that the civil courts would rule on such a question. This is particularly the case because, as I pointed out in my last post, the First Amendment prohibits courts from ruling on "purely religious concerns such as church governance or polity." See also Wolf v. Jones, 443 U.S. 595 (1979).
I will await with interest developments; either the pleadings in the threatened defamation suit, which will be instructive, at a minimum, or the good bishop's climbing down from the threat.
Friday, March 28, 2008
St. James, Elmhurst: Decision For the Diocese
(Edited and Updated)
The decision of the Supreme Court, Queens County in St. James Church, Elmhurst v. Episcopal Diocese of Long Island, Index No. 22564/05, was rendered on March 12. Over at SF, a scathing critique of the decision’s result does not engage the court’s reasoning. For the decision’s critics, the fact that the court found that a parish does not have a right to secede from the Episcopal Church is enough to (forgive the pun!) damn it. No analysis of the applicable state law is necessary.
This attitude is one that is, frankly, all too prevalent–and not just confined to one “side” of the dispute. Despite the fact that I’m a lawyer, I’ve tread warily with respect to these state law issues outside of my home state of New York, and likewise with respect to questions swirling around the canonicity of deposing Bishops Schofield and Cox. That is because canon law is complex, requiring review of caselaw, statutory language, and what we in the law biz call legislative history. Without access to a library containing such things, and a fair amount of time to review them, the better course is to remember Wittgenstein: “Whereof one cannot speak, thereof one must be silent.”
But, finally, the St. James decision is one where I feel I can offer an opinion. It’s in my state, I’m admitted to the bar, and I’ve had a chance to read the decision’s reasoning, and not just a partisan reaction to the holding. So let’s begin:
1. The Procedural Posture
Both sides moved for summary judgment–that is, a decision based on a finding that no material issue of fact is disputed, and therefore a trial is not necessary. Both sides had moved for summary judgment, and so that determination seems unlikely to be overturned on appeal.
2. The Facts Underlaying the Court’s Decision
St. James was established in 1704, but received a corporate charter in 1761. (Decision at 4). After the Revolution, St. James (as well as two other churches) petitioned the New York State Legislature “to permit these churches to exist in corporate form ‘in communion of the Protestant Episcopal Church in New York.’” (Decision at 5). In 1793, the Legislature passed a statute providing that “the said corporation of St. James church ... shall and may...take and use the name of, The Rector and Inhabitants of the town of Newtown, in Queens County, in communion of the Protestant Episcopal church, in the State of New-York; and ... be capable” of transacting business “in as full and ample manner” as before. (Decision at 5-6).
In 1951, St. James successfully petitioned for an order under the State Religious Corporations Law, approving the sale of certain real property, reciting, that “the sale had been consented to by the Bishop of Long Island” and other diocesan authority. (Decision at 6). The deeds referred to in the petition were produced to the court in this case, and (when entered into after the Revolution) described the Church as “in communion with the Protestant Episcopal Church of the State of New York” or to the corporate name as enacted by the Legislature. (Decision at 7).
When in 1849 St. James built its second church building, the corporation signed an “Instrument of Donation” stating that “the building would be used solely for the purposes of conducting religious services ‘according to the provisions of the Protestant Episcopal Church in the United States of America.’” (Decision at 8). The Instrument further stated that the “property would not be put to any use inconsistent with the Instrument of Donantion.” (Id.).
St. James owned property in Lower Manhattan that Trinity Church, Wall Street had an interest in as well, and sought in 1964 to sell it. St. James filed a petition seeking judicial approval of the sale, noting that Trinity agreed to waive its interest in the property as long as the proceeds be held in trust, and that the principal “‘shall revert to Trinity Church in the event that said St. James Parish shall cease to be an Episcopal Church.’” (Decision at 8-9). St. James sought the court’s approval of the sale under Religious Corporations Law § 12, as it had previously done in 1951, and noted that the Bishop of Long Island had, as before, given consent to the sale. Decision at 9).
I’ll spare you the details of the schism–it’s the usual: doctrinal differences, especially over homosexuality, with the parish withholding some assessments–but not all–and continuing to contribute to the pension funds of the clergy. Let’s move on to the analysis.
3. The Court’s Analysis
New York applies the “neutral principles of law” analysis, under which the language of property deeds, the terms of the church charter, and the provisions of the general church concerning the ownership and control of church property are employed. (Decision at 22). The court reviews these documents to determine whether there is any basis for finding a “trust or similar restriction in favor of the general church, taking care to scrutinize the documents in purely secular terms.” (Decision at 22). The court must take special care not to become involved "in internal religious disputes” or become engaged in "purely ecclesiastical concerns “such as church governance or polity.” Decision at 22-23).
Under New York law, a church may be either “hierarchical” (centrally organized as a single body) or “congregational”–a confederation of local churches, which remain independent at bottom). The Episcopal Church has been routinely deemed hierarchical. (Decision at 23-24). This conclusion conforms to cases decided by the U.S. Supreme Court, the New York intermediate appellate courts, and other trial level courts in the State. (Decision at 23-24). However, even where a church is hierarchical in nature, local members can claim property “provided that they have not previously ceded the property to the denominational church.” Decision at 24, quoting First Presbyt. Church v. United Presbyt. Church, 62 N.Y.2d 110, 120 (1984). In this case, the court found, the local church had clearly ceded the property. The court based this conclusion on several factors:
i. The Instrument of Donation in 1849, because the present use by a non-TEC Church is inconsistent with the Instrument;
ii. The 1964 proceeding made clear that the funds in trust would revert to Trinity Wall Street should St. James “cease to be an Episcopal Church.” (At this point, the court determines St. James’s incumbents have no claim on these funds; they appear to have lost credibility with the Court by maintaining these funds in an escrow account, rather than surrendering them);
iii. The reincorporation by the New York State Legislature, referencing “communion with” TEC. The court explicitly found that this provision stripped the vestry of authority when they disaffiliated with TEC.
iv. The relationship with the Diocese was not, as the incumbents claimed, severed prior to 2005; one of the incumbents admitted as much, and the correspondence established it as well;
v. The history of obtaining the Diocese’s consent before selling property, in 1951 and 1964.
vi New York State’s statutory acknowledgment of a “trust” relationship between parishes and TEC in Rel. Corp. Law § 42-a, enacted in 1991.
vii The Dennis Canons, amended in 1979. Both the Diocese and the incumbents produced expert witnesses regarding whether the amendments “affirmed and ma[d]e clear existing canonical church law” or acted to “effect a change in said law.” (Decision at 32). Based on Canon II.6, extending as far back as 1871, and Canon I.7 (1941), the Diocese’s expert was credited. (Decision at 33). Canon II.6, in particular, states that consecrated property “must be ‘secured for ownership and use’ by a parish or congregation ‘affiliated with [TEC] and subject to its Constitutions and Canons.’” (Decision at 33).
One reason for the court’s rejection of the incumbents’ challenge to the Dennis Canons was that “in the 26 years following the adoption of the Dennis Canons... St. James raised no objections to these Canons, until after the March 30, 2005 schism.” (Decision at 34).
As has been common in these cases, the court did not find for the Diocese on claims for damages–no doubt the sincerity with which the religious controversy is being waged on both sides led the court to want to avoid a punitive ruling. (Even though a strict reading of the law might not have been observed by that part of the ruling, as the implication of the ruling is that the former vestry is guilty of conversion, I think the court was probably right).
[Update: 3/29/08 On further reflection, I think the incumbents made three litigational errors that significantly undermined their cause: The first, referred to above, is that they continued to claim the trust funds, even though leaving TEC clearly abrogated the explicit terms of the trust. To be intellectually consistent, they should have argued that the funds belonged not to St James Parish-Anglican, but to Trinity Wall Street. Second, By arguing that the Religious Corporations Law did not govern St. James, they elided the fact that St. James had twice filed petitions under that statute, and had prevailed. A party who seeks relief under a legal theory and wins is prohibited by what is called "judicial estoppel" from denying that theory in subsequnt proceedings. Finally, the claim of a complete severance in relationship prior to 2005 was both untenable and unnecessary. By making a claim that correspondence, flow of funds and the incumbents' own witnesses undermined, precious credibility was lost.]
4. Prospects for Appeal
Finally, the fact that the Court of Appeals–New York’s highest court–is reviewing Episcopal Diocese of Rochester v. Harnish, 17 Misc.3d 1105A, 851 N.Y.S.2d 57 (Sup. Ct. Monroe Co. 2006), aff’d 43 A.D.3d 1406 (4th Dept. 2007), may offer some hope to the dissidents here. If the Court of Appeals overrules First Presbyterian, and rejects “neutral principles,” that may indeed be the case. I suspect, though, from reading the opinion in Harnish, that what attracted the Court of Appeal’s interest was that the court below granted summary judgment almost exclusively on the statutory argument, and on the assumption that the hierarchical nature of TEC was near-dispositive of the property question; after losing on summary judgment, the dissidents sought to bring in evidence that they had not ceded the property, but the lower court ruled that they had lost their opportunity to do so. The Court of Appeals may be uncomfortable with ruling on so sensitive a subject based on, in essence, a procedural default. The upshot of all of this is that, unlike the court in Harnish, the court in St. James made a very factually-specific, nuanced ruling. I not only think it will stand up on review if appealed, I think that it’s correct under the law, and under the facts.
The decision of the Supreme Court, Queens County in St. James Church, Elmhurst v. Episcopal Diocese of Long Island, Index No. 22564/05, was rendered on March 12. Over at SF, a scathing critique of the decision’s result does not engage the court’s reasoning. For the decision’s critics, the fact that the court found that a parish does not have a right to secede from the Episcopal Church is enough to (forgive the pun!) damn it. No analysis of the applicable state law is necessary.
This attitude is one that is, frankly, all too prevalent–and not just confined to one “side” of the dispute. Despite the fact that I’m a lawyer, I’ve tread warily with respect to these state law issues outside of my home state of New York, and likewise with respect to questions swirling around the canonicity of deposing Bishops Schofield and Cox. That is because canon law is complex, requiring review of caselaw, statutory language, and what we in the law biz call legislative history. Without access to a library containing such things, and a fair amount of time to review them, the better course is to remember Wittgenstein: “Whereof one cannot speak, thereof one must be silent.”
But, finally, the St. James decision is one where I feel I can offer an opinion. It’s in my state, I’m admitted to the bar, and I’ve had a chance to read the decision’s reasoning, and not just a partisan reaction to the holding. So let’s begin:
1. The Procedural Posture
Both sides moved for summary judgment–that is, a decision based on a finding that no material issue of fact is disputed, and therefore a trial is not necessary. Both sides had moved for summary judgment, and so that determination seems unlikely to be overturned on appeal.
2. The Facts Underlaying the Court’s Decision
St. James was established in 1704, but received a corporate charter in 1761. (Decision at 4). After the Revolution, St. James (as well as two other churches) petitioned the New York State Legislature “to permit these churches to exist in corporate form ‘in communion of the Protestant Episcopal Church in New York.’” (Decision at 5). In 1793, the Legislature passed a statute providing that “the said corporation of St. James church ... shall and may...take and use the name of, The Rector and Inhabitants of the town of Newtown, in Queens County, in communion of the Protestant Episcopal church, in the State of New-York; and ... be capable” of transacting business “in as full and ample manner” as before. (Decision at 5-6).
In 1951, St. James successfully petitioned for an order under the State Religious Corporations Law, approving the sale of certain real property, reciting, that “the sale had been consented to by the Bishop of Long Island” and other diocesan authority. (Decision at 6). The deeds referred to in the petition were produced to the court in this case, and (when entered into after the Revolution) described the Church as “in communion with the Protestant Episcopal Church of the State of New York” or to the corporate name as enacted by the Legislature. (Decision at 7).
When in 1849 St. James built its second church building, the corporation signed an “Instrument of Donation” stating that “the building would be used solely for the purposes of conducting religious services ‘according to the provisions of the Protestant Episcopal Church in the United States of America.’” (Decision at 8). The Instrument further stated that the “property would not be put to any use inconsistent with the Instrument of Donantion.” (Id.).
St. James owned property in Lower Manhattan that Trinity Church, Wall Street had an interest in as well, and sought in 1964 to sell it. St. James filed a petition seeking judicial approval of the sale, noting that Trinity agreed to waive its interest in the property as long as the proceeds be held in trust, and that the principal “‘shall revert to Trinity Church in the event that said St. James Parish shall cease to be an Episcopal Church.’” (Decision at 8-9). St. James sought the court’s approval of the sale under Religious Corporations Law § 12, as it had previously done in 1951, and noted that the Bishop of Long Island had, as before, given consent to the sale. Decision at 9).
I’ll spare you the details of the schism–it’s the usual: doctrinal differences, especially over homosexuality, with the parish withholding some assessments–but not all–and continuing to contribute to the pension funds of the clergy. Let’s move on to the analysis.
3. The Court’s Analysis
New York applies the “neutral principles of law” analysis, under which the language of property deeds, the terms of the church charter, and the provisions of the general church concerning the ownership and control of church property are employed. (Decision at 22). The court reviews these documents to determine whether there is any basis for finding a “trust or similar restriction in favor of the general church, taking care to scrutinize the documents in purely secular terms.” (Decision at 22). The court must take special care not to become involved "in internal religious disputes” or become engaged in "purely ecclesiastical concerns “such as church governance or polity.” Decision at 22-23).
Under New York law, a church may be either “hierarchical” (centrally organized as a single body) or “congregational”–a confederation of local churches, which remain independent at bottom). The Episcopal Church has been routinely deemed hierarchical. (Decision at 23-24). This conclusion conforms to cases decided by the U.S. Supreme Court, the New York intermediate appellate courts, and other trial level courts in the State. (Decision at 23-24). However, even where a church is hierarchical in nature, local members can claim property “provided that they have not previously ceded the property to the denominational church.” Decision at 24, quoting First Presbyt. Church v. United Presbyt. Church, 62 N.Y.2d 110, 120 (1984). In this case, the court found, the local church had clearly ceded the property. The court based this conclusion on several factors:
i. The Instrument of Donation in 1849, because the present use by a non-TEC Church is inconsistent with the Instrument;
ii. The 1964 proceeding made clear that the funds in trust would revert to Trinity Wall Street should St. James “cease to be an Episcopal Church.” (At this point, the court determines St. James’s incumbents have no claim on these funds; they appear to have lost credibility with the Court by maintaining these funds in an escrow account, rather than surrendering them);
iii. The reincorporation by the New York State Legislature, referencing “communion with” TEC. The court explicitly found that this provision stripped the vestry of authority when they disaffiliated with TEC.
iv. The relationship with the Diocese was not, as the incumbents claimed, severed prior to 2005; one of the incumbents admitted as much, and the correspondence established it as well;
v. The history of obtaining the Diocese’s consent before selling property, in 1951 and 1964.
vi New York State’s statutory acknowledgment of a “trust” relationship between parishes and TEC in Rel. Corp. Law § 42-a, enacted in 1991.
vii The Dennis Canons, amended in 1979. Both the Diocese and the incumbents produced expert witnesses regarding whether the amendments “affirmed and ma[d]e clear existing canonical church law” or acted to “effect a change in said law.” (Decision at 32). Based on Canon II.6, extending as far back as 1871, and Canon I.7 (1941), the Diocese’s expert was credited. (Decision at 33). Canon II.6, in particular, states that consecrated property “must be ‘secured for ownership and use’ by a parish or congregation ‘affiliated with [TEC] and subject to its Constitutions and Canons.’” (Decision at 33).
One reason for the court’s rejection of the incumbents’ challenge to the Dennis Canons was that “in the 26 years following the adoption of the Dennis Canons... St. James raised no objections to these Canons, until after the March 30, 2005 schism.” (Decision at 34).
As has been common in these cases, the court did not find for the Diocese on claims for damages–no doubt the sincerity with which the religious controversy is being waged on both sides led the court to want to avoid a punitive ruling. (Even though a strict reading of the law might not have been observed by that part of the ruling, as the implication of the ruling is that the former vestry is guilty of conversion, I think the court was probably right).
[Update: 3/29/08 On further reflection, I think the incumbents made three litigational errors that significantly undermined their cause: The first, referred to above, is that they continued to claim the trust funds, even though leaving TEC clearly abrogated the explicit terms of the trust. To be intellectually consistent, they should have argued that the funds belonged not to St James Parish-Anglican, but to Trinity Wall Street. Second, By arguing that the Religious Corporations Law did not govern St. James, they elided the fact that St. James had twice filed petitions under that statute, and had prevailed. A party who seeks relief under a legal theory and wins is prohibited by what is called "judicial estoppel" from denying that theory in subsequnt proceedings. Finally, the claim of a complete severance in relationship prior to 2005 was both untenable and unnecessary. By making a claim that correspondence, flow of funds and the incumbents' own witnesses undermined, precious credibility was lost.]
4. Prospects for Appeal
Finally, the fact that the Court of Appeals–New York’s highest court–is reviewing Episcopal Diocese of Rochester v. Harnish, 17 Misc.3d 1105A, 851 N.Y.S.2d 57 (Sup. Ct. Monroe Co. 2006), aff’d 43 A.D.3d 1406 (4th Dept. 2007), may offer some hope to the dissidents here. If the Court of Appeals overrules First Presbyterian, and rejects “neutral principles,” that may indeed be the case. I suspect, though, from reading the opinion in Harnish, that what attracted the Court of Appeal’s interest was that the court below granted summary judgment almost exclusively on the statutory argument, and on the assumption that the hierarchical nature of TEC was near-dispositive of the property question; after losing on summary judgment, the dissidents sought to bring in evidence that they had not ceded the property, but the lower court ruled that they had lost their opportunity to do so. The Court of Appeals may be uncomfortable with ruling on so sensitive a subject based on, in essence, a procedural default. The upshot of all of this is that, unlike the court in Harnish, the court in St. James made a very factually-specific, nuanced ruling. I not only think it will stand up on review if appealed, I think that it’s correct under the law, and under the facts.
Friday, March 21, 2008
Good Friday and the Atonement
Back in December, I explained my reasons for rejecting the theory of penal substitutionary atonement, and said that I would propose a Lux Mundi-influenced theory of the Atonement.
And then I didn't. Largely because the thought that I could try to encapsulate so much in a blog post was more than slightly daunting. But at today's Three Hours Meditations on the Seven Words, I had a thought regarding the Atonement:
My principal difficulty with PSA has always been its image of God; what kind of God would only spare humanity by sacrificing His Son to the hideous death of the Cross? In "The Atonement" in Lux Mundi, Arthur Lyttleton rejects a savage God propitiated with innocent blood; he stresses, instead, that the Atonement changes the suffering that follows sin from meaningless to transformative:
"Even we," says St. Paul, "which have the first fruits of the Spirit", even we are waiting for the further process, for "the adoption, to wit, the redemption of our body." And the process consists in so following "the Captain of our salvation" that, like Him, we accept every one of those sufferings which are the consequences of sin, but accept them not as punishment imposed from without upon unwilling offenders, but as the material of our freewill sacrifice. From no one pang or trial of our nature has He delivered us, indeed, He has rather laid them upon us more unsparingly, more inevitably. But the sufferings from which He would not deliver us He has transformed for us. They are no longer penal, but remedial and penitcntial. Pain has become the chastisement of a Father who loves us, and death the passage into His very presence."The Atonement," Lux Mundi at 254-25.
Embedded in Lyttleton's argument is the need for punishment to serve the justice of God. But, perhaps, the Atonement is not for what Jean Anouilh called "the Honor of God." Perhaps, instead, is for our benefit--that is, we need to be made aware of the profound love God bears us, how much He yearns to be reconciled with us--so much so, that, in fact, He will Himself show us how to live--to take up our cross and follow Him, or, put in more mundane terms, to live lives reponding to the magnitude of the gift of forgiveness we have been given, and in relationship as reconciled children of God. Perhaps it is we who cannot accept forgiveness without cost, or understand love without limit, until it is shown to us--until we can probe our Lord's wounds ourselves, and marvel.
Lyttleton puts forward a vision of the Atonement that is grounded not just in His death, but in Christ's whole life; a vision of a human being who is so steeped in God and so responsive to God, that He is able to give all to God, even to the point of death--even when God's absence is felt by Jesus in the moment of death--an absence,Lytleton suggests, that Jesus had never known before. In so living, and so dying, Jesus models for us our optimum response to God.
We can't do that, of course. The fallibility of the apostles must cheer us, to some extent. But, perhaps, we can like them strive to live in harmony, in relationship, with God, with Jesus's example, such that we can surprise ourselves. Paul, the legalist, becomes the advocate of inclusion beyond the Law; Peter, who denied Christ and fled, becomes the model of bravery. Thomas, who doubted, is made steadfast. As Lyttleton writes, "we are justified because we believe in God, but also because God believes in us." (Id. at 254).
Now, Lyttleton does not wholly reject PSA--he suggests that God's justice cannot spare us eternal death without some sacrifice, made by Jesus, who is representative of us (and mystically one with us)--but can initiate reconciliation by being without sin. But he also makes the point, related here, that Jesus's death on our behalf calls for a response from us--that he is teaching us what it means to be forgiven, and to live as a child of God: not in self-aggrandizement or in smug satisfaction like Spintho in Androcles and the Lion, but in awareness that ourselves forgiving and responding to forgiveness, are the essence of atonement. Lyttleton sees Jesus's life as reuniting us with God, that culminates not just in the Cross, but in the New Life that follows it.
Sunday, March 16, 2008
Perspective on Palm Sunday
After a crowded and stress-filled week at work (I'll spare you), I was looking forward to LEM-ing in the 11:00 Palm Sunday Mass as a chance to recharge my batteries. Instead, I was late due to the re-routing of traffic resulting from yesterday's crane collapse. I missed the procession, and took a seat among the congregation. Quite frankly, I was livid with myself--I'd never been late to assist in any capcity in church services, and was blaming myself for letting down the Verger, the clergy and my fellow LEMs. After a few minutes of this, I spied the Verger in a cloister. I delicately stalked round the Church to avoid distracting from the service, and told him I was sorry to be late--and then asked if I should vest, or just sit this one out. He calmly said "vest."
As I was tying the cincture, my friend the Deacon came into the vesting room, and said hello. I muttered "Late. Crane collapse." He picked up the last part, and empathetically murmured, "Terrible thing. All those people hurt--and the ones who lost their homes." And then whisked away. (How like the Deacon to focus on the relevant issue--those hurt and suffering in the world.)
On my way back to join the LEMs, the Rector and I met, heading in different directions in a passage too narrow for both of us to pass at onece. I motioned him through, and he gave me a pleasant smile, and said simply, "Thanks, John."
I rejoined the others, and served. When I saw the Verger later, he cheerfully waved away my apology, saying "Happens to us all. Don't worry."
The only one angry at me had been me.
****
Silly story, isn't it? How easily we all can beat up ourselves for not meeting our own expectations of acceptable performance. Yet--a couple of years ago, I'd have let this ruin the service for me. I wouldn't have sought out the Verger, and asked if I could still be of use. I'd have seethed at my own mistake, possibly all day. I'm struck by how we disproportionately view our flaws and mistakes, showing ourselves no mercy, or sometimes blind to our own errors.
I think this is one reason Jesus tells us to "Judge not, that ye be not judged." Because, quite frankly, we lack the perspective, and the loving-kindness to do it well. All too often, and the last few weeks in the Anglican blogosphere have been a great example of this, we have seen anger drown out charity, compassion evicted by "righteous indignation." I have been guilty of this myself. Time for a change.
I'm going to try to raise my game a bit here. Like
Father Jones, I'm going to try to focus on some spiritual study points, exploring the classics that have drawn me in, and also thinking out loud about some issues that are forming me on my own journey. I hope to, when I do venture into the Great Unpleasantness of the Anglican mess, remember the need to show real charity--by engaging with understanding views that differ from my own, and not just thundering out my own opinions.
A blessed Holy Week to all.
As I was tying the cincture, my friend the Deacon came into the vesting room, and said hello. I muttered "Late. Crane collapse." He picked up the last part, and empathetically murmured, "Terrible thing. All those people hurt--and the ones who lost their homes." And then whisked away. (How like the Deacon to focus on the relevant issue--those hurt and suffering in the world.)
On my way back to join the LEMs, the Rector and I met, heading in different directions in a passage too narrow for both of us to pass at onece. I motioned him through, and he gave me a pleasant smile, and said simply, "Thanks, John."
I rejoined the others, and served. When I saw the Verger later, he cheerfully waved away my apology, saying "Happens to us all. Don't worry."
The only one angry at me had been me.
****
Silly story, isn't it? How easily we all can beat up ourselves for not meeting our own expectations of acceptable performance. Yet--a couple of years ago, I'd have let this ruin the service for me. I wouldn't have sought out the Verger, and asked if I could still be of use. I'd have seethed at my own mistake, possibly all day. I'm struck by how we disproportionately view our flaws and mistakes, showing ourselves no mercy, or sometimes blind to our own errors.
I think this is one reason Jesus tells us to "Judge not, that ye be not judged." Because, quite frankly, we lack the perspective, and the loving-kindness to do it well. All too often, and the last few weeks in the Anglican blogosphere have been a great example of this, we have seen anger drown out charity, compassion evicted by "righteous indignation." I have been guilty of this myself. Time for a change.
I'm going to try to raise my game a bit here. Like
Father Jones, I'm going to try to focus on some spiritual study points, exploring the classics that have drawn me in, and also thinking out loud about some issues that are forming me on my own journey. I hope to, when I do venture into the Great Unpleasantness of the Anglican mess, remember the need to show real charity--by engaging with understanding views that differ from my own, and not just thundering out my own opinions.
A blessed Holy Week to all.
Saturday, March 8, 2008
Across the Gulf
Just a short post to commend a discussion on Stand Firm in which a (mostly) civil, erudite series of exchanges take place on the same subject covered by this post.
It's a pity we can't do this more across the gulf of the current disputes. Still, this kind of discussion could be a start to moving away from a "total war" mentality to one of reasoned debate. Or not; at any rate it's a good thing to see.
It's a pity we can't do this more across the gulf of the current disputes. Still, this kind of discussion could be a start to moving away from a "total war" mentality to one of reasoned debate. Or not; at any rate it's a good thing to see.
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