Monday, October 6, 2014

Scalia's Prophecy Fulfilled (Sub Silentio)

Sub silentio (literally, "under [the cloak of] silence") is a legal term of art for the technique of a court that, say, wants to accomplish something like the overruling of an earlier case -- without having to admit in express words what it is doing. For whatever political or collegial considerations prevail at the moment, the court finds it more "convenient" to stop short of saying what it is doing, while doing it nonetheless. Then, either a few (or even many) years later, the court can "discover", say, that the case of W. vs. X was in fact overruled, sub silentio, by the case of Y vs. Z.

Courts also understandably shy away from overturning their own prior decisions. As Justices O'Connor, Kennedy and Souter noted in declining to overrule Roe v. Wade in the later case of Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 844, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), “Liberty finds no refuge in a jurisprudence of doubt.”

Today the United States Supreme Court in effect overruled, without saying so, its earlier holdings in which it expressly declined to declare that homosexuals enjoyed a "fundamental right" to practice their lifestyle without State interference. And the most remarkable thing is that it did so sub silentio, without even issuing any written opinion!

The Court accomplished this astonishing feat by the simple tactic of exercising its power to review lower court decisions. It denied review of decisions by three different Circuit Courts of Appeal striking down bans on same-sex marriages in the states of Indiana, Oklahoma, Utah, Virginia (three cases) and Wisconsin. Those seven decisions are now final, and mean that the same courts could in the future strike down similar laws in six other States within their jurisdictions: Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming.

Moreover, a decision striking down bans on same-sex marriage in Idaho and Nevada is expected soon from the very liberal Ninth Circuit Court of Appeals in San Francisco, with jurisdiction over seven more States than those two. Cases that could be affected by that ruling are currently pending in the lower courts of Alaska, Arizona and Montana.

Before today's denials of review, the Court had uniformly struck down refusals by the lower courts to stay the effect of their decisions (and thus begin the process of marrying same-sex couples before those decisions became final). But now that those decisions are made final, by the Court's refusal to review them, the couples in the States affected by the rulings will begin marrying as soon as next Monday.

So by refusing to exercise its powers of review, the Court has in effect given a green light to same-sex marriage in as many as thirty States, with more sure to follow. And all of this without a single uniform ruling that same-sex marriage is a "fundamental right" under the Constitution!

Previously the Court had held that State statutes having a discriminatory effect against a class of people could be upheld if there was any "rational basis" for the discrimination -- unless the case involved a "fundamental right", in which instance the statute would be subjected to a higher standard of review, called "strict scrutiny." In Roe v. Wade, for example, the Court struck down an anti-abortion statute on the ground that the right to abort an unborn child was "fundamental" under the Constitution.

But after today's (in)action, that is a distinction without a difference. In its 2003 decision in Lawrence v. Texas, striking down a Texas criminal statute outlawing acts of sodomy between people of the same sex, the majority went out of its way to declare that it was not finding a "fundamental right" to engage in sodomy. Rather, it struck down the statute on the ground that the only basis for the provision was in a moral or religious code. States could not enact penal laws on such a basis, it declared, without infringing on "a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals." (My bold emphasis added.)

As Justice Scalia pointed out in a stinging and prophetic dissent, this rationale had no limits at all:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 2480 (noting “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (emphasis added)). The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge [i.e., the petitioners' challenge that the anti-sodomy law involved in that case had no rational basis to support it]. “The law,” it said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.” 478 U.S., at 196, 106 S.Ct. 2841. 

(Lawrence v. Texas (2003) 539 U.S. 558, 590 [123 S.Ct. 2472, 2490, 156 L.Ed.2d 508] [footnote omitted].)

Justice Scalia called it exactly, right down to today's (in)action. The sequence of rulings from the Supreme Court is thus as follows:

1. Bowers v. Hardwick (1986) 478 U.S. 186 [106 S.Ct. 2841, 92 L.Ed.2d 140]: Georgia's anti-sodomy statute did not violate the "fundamental rights" of homosexuals. Justices in the majority: White, Burger (C.J.), Powell, Rehnquist and O'Connor; Justices dissenting: Blackmun, Brennan, Marshall and Stevens.

2. Lawrence v. Texas (2003) 539 U.S. 558 [123 S.Ct. 2472, 156 L.Ed.2d 508]: While not deciding that homosexuals had any "fundamental Constitutional right" to engage in sodomy, the Court held that States could not penalize such acts without interfering with the essential liberty of individuals to make lifestyle choices. Justices in the majority: Kennedy, Stevens, Souter, Ginsburg and Breyer (O'Connor concurred in the judgment); Justices dissenting: Rehnquist (C.J.), Scalia, and Thomas.

3. United States v. Windsor (2013) __ U.S. ___ [133 S.Ct. 2675, 186 L.Ed.2d 808]: While not deciding that same-sex marriage is a "fundamental right deeply rooted in this Nation's history and tradition," Congress' singling out of only heterosexual marriage for federal recognition unconstitutionally deprives same-sex couples recognized by their own State of their liberty under the Fifth Amendment. Justices in the majority: Kennedy, Ginsburg, Breyer, Sotomayor and Kagan; Justices dissenting: Roberts (C.J.), Scalia, Thomas and Alito.

It will be evident at once that Justice Kennedy has been instrumental in shifting the Court's gay-rights jurisprudence from the narrow necessity of first finding that such rights are "fundamental" (in order to make laws discriminating against them subject to strict scrutiny) to the far broader, less stringent  requirement that State and federal laws may not unduly infringe upon the liberty of individuals to lead the lifestyles of their choice. Each time, he attracted the Court's liberal majority to support him in that shift.

At the same time, it should be evident, in light of today's orders refusing review of any of the decisions striking down same-sex-marriage bans below, that at least one Justice on the so-called conservative side had to vote with the liberals and Justice Kennedy to deny review. The reason for that statement is that it takes the vote of just four Justices to accept a case for review, and there were four dissenting justices in Windsor who are all still on the Court today. (I speak of the "so-called" conservative side because it is becoming increasingly questionable whether the Chief Justice may still be counted among their number.)

[UPDATE 10/06/2012: For a slightly different take on what could have occurred behind the Court's sealed doors -- and especially detailing the switch in viewpoint that had to occur for Justice Kennedy -- see this post from law professor Josh Blackman (blog linked under "Juricannon" at the right).]

Before today's orders were issued, Justice Ginsburg had expressed the view in public that the same-sex marriage rulings were not yet ripe for review, as there were not yet any decisions by the Courts of Appeal that upheld a State's ban on same-sex marriages. The Court usually likes to step in only to resolve conflicts between the Courts of Appeal, and here there were none (yet). Could this viewpoint have swayed any of the four conservatives? I doubt it very much.

At the same time, if those same four Justices could read the tea leaves displayed by the prior decisions in Lawrence and Windsor, then it should have been obvious that accepting review of any of the seven cases below would have led only to another Kennedy majority opinion finding that bans on same-sex marriage infringe unconstitutionally upon individual liberties. Thus by declining review at this time, the door could be left open for a different Court at a later day to return, perhaps, to the rational basis jurisprudence that prevailed pre-Lawrence.

And given the results expected in the upcoming midterm elections, such a calculating minority Justice (or two) might well entertain the hope that the elections would stymie President Obama's ability to appoint any more Justices for the remainder of his term -- leaving open the possibility that 2016 could see the election of a Republican president with a Republican majority in the Senate.

Cynical? You bet. Calculating? Certainly. For the calculus says nothing about what will happen to all of the same-sex marriages that will be contracted in many States between next Monday and whenever there is again a conservative majority on the Court. Presumably their validity would be a fait accompli, and seen as the temporary price to be paid for a longer-term uniformity in the law.

But is that any worse than the cynicism and calculated strategies of those who are currently employing the lower federal courts to gain what they could not gain at the ballot box?

I say we are all the worse off for the sheer, unprincipled politics that now govern federal jurisprudence on issues that were traditionally left to the individual States to decide. When the courts read the newspapers rather than their own precedents, we are indeed at the point where liberty can find no refuge in a jurisprudence of doubt or politics.



Wednesday, October 1, 2014

Clash of the Canons and Civil Law at GTS

The recent meltdown at the country's oldest theological seminary (and the only Episcopal seminary under the direct supervision of ECUSA) puts to the test some of the canonical abuses and litigation strategy implemented in the last few years by the Church's leadership at 815 Second Avenue. Eight of the ten full-time faculty employed by General Theological Seminary declared in a September 17 letter to the Board of Trustees that due to the "hostile work environment" created by the Seminary's Dean and President, the Very Rev. Kurt H. Dunkle, they were unable to continue to work under him.

The phrase "hostile work environment" is drawn from the well-developed body of labor law enforced in the United States by the National Labor Relations Board. However, ever since a decision by the United States Supreme Court in 1979, the NLRB's jurisdiction has been held not to extend to religious schools and their faculties (including lay faculty), due to concerns over entanglement with religious rights under the First Amendment. Just as with all the recent Church property disputes, ECUSA has been at the forefront of insisting that the civil courts must defer to it in all civil litigation involving its religious affairs, governance and operations.

Nevertheless, the eight employees have announced that they have formed a union, and want the Seminary to negotiate their demands with their authorized representatives. (Scroll down to the letter of September 25, second page.) Those demands are five in number:
1. The immediate appointment of a committee of Board members, to be determined by the faculty, to meet with us to discuss conditions necessary for moving forward as an institution during the October meeting of the Board of Trustees.

2. That action be taken to empower the faculty with immediate oversight over the curriculum, schedule, worship, and overall program of formation for the seminary. This should also involve the appointment of a faculty council who will implement a pattern of worship consistent with the Book of Common Prayer (1979).

3. Identification and retention of a qualified person, external to the institution, to offer pastoral support to staff, students, and faculty during this period of transition and acute stress. We also seek the appointment of a Dean of Students who can ensure that the ongoing spiritual and pastoral concerns are being adequately met and their voices heard.

4. Steps be immediately taken to restore and ensure that the faculty members be afforded due process in connection with all appointments, worship and formation, and the implementation of our curriculum. The Academic Dean should be empowered with the authority necessary to implement properly the academic program, consistent with the standards of the Association of Theological Schools (ATS) and our own recent Declaration of the Way of Wisdom.

5. Retention of a qualified fundraiser to begin a capital campaign to rebuild the seminary’s endowment and meet the operational costs of the seminary.
The Board has thus far resisted acceding to any of the faculty's demands (one Board member wrote on her Facebook page that while Nos. 3 and 5 were "not bad ideas," the rest were "impossible").
Instead, apparently under the guidance of its Chair, the resigned (retired) Rt. Rev. Mark Sisk, and of Dean Dunkle, the Board issued a statement to the effect that it had voted "with great regret" to accept the resignations of the eight faculty members.

In doing so, the Board took a leaf from the book at 815, where the Presiding Bishop has unilaterally rid herself of pesky dissident bishops by abusing the renunciation of vows canon. She will take any form of written or oral statement expressing disagreement with her jurisdiction as the required written declaration of "an intention to be released and removed from the ordained Ministry of this Church and from the obligations attendant thereto" (Canon III.12.7 [a]) -- regardless of what the bishop in question says to the contrary.

No one, however, is talking at GTS of renunciation of orders -- but only of resignation from a full-time faculty position. Nevertheless, the same contract principles should apply: one cannot read a resignation into a demand that the Board redress what has become a hostile workplace, and a refusal to continue to perform assigned duties until the Board acknowledges the problem and begins to address it.

In other words, the argument that the faculty members have breached their respective contracts to teach classes at GTS is unavailable in these circumstances, because no one can be required to work in a hostile environment, and the environment is the Dean's (and ultimately the Board's) responsibility. If the faculty is correct in their charges, the first breach occurred on the part of the Dean, and unless the Board cures the problem, it will be complicit in that same breach -- thereby excusing performance on the part of the faculty while the breach continues.

And what has the Board done in response to the faculty's demands? It called upon the pro bono services of one of New York's largest law firms, Covington & Burling, to make a formal investigation into the charges made against Dean Dunkle, and declared it would take no further steps until that investigation was completed. As of yesterday, the law firm was interviewing in its offices each faculty member separately to gather evidence for its report to the Board.

But the Board has not suspended Dean Dunkle, or otherwise relieved him of responsibility, pending the outcome of the investigation. So the ultimate right of the faculty to go on strike will first depend upon whether the Board finds their charges were justified.

The charges are described generally in the second through the fifth paragraphs of the faculty members' letter of September 17. For the most part they amount to saying that Dean Dunkle seems incapable of acting with sensitivity toward Asians, women, African-Americans, and gays, and that as a consequence he offends and intimidates both faculty and students alike. In other words, this is a quintessential clash between Episcopal authoritarianism and Episcopal liberalism.

Declaring that the September 17 letter amounted to a letter of resignation was an authoritarian act. And to that extent, it harks back to the authoritarian manner in which ECUSA's Presiding Bishop has chosen to deal with those bishops and clergy who openly disagree with her, and with what she sees as ECUSA's priorities.

There is another Canon to which the GTS Board may be turning to justify its authoritarian action -- and if so, it would once again be imitating the litigation strategy of 815 against departing parishes. Canon I.17.8 (in a section that deals with laity in the Church) provides:
Any person accepting any office in this Church shall well and faithfully perform the duties of that office in accordance with the Constitution and Canons of this Church and of the Diocese in which the office is being exercised.
In cases where vestries have voted to withdraw their parish from an Episcopal Diocese, ECUSA and its attorneys have always invoked this Canon, and argued that by the very act of voting to withdraw, the individual vestry members had disqualified themselves from further service on the vestry. A number of civil courts in California and elsewhere have upheld that argument -- turning the Canon into a sort of "ejector seat" mechanism.

(The question of how a vestry position for a local parish is "an office in this Church" has never stopped 815 from applying the Canon -- and so the issue of whether a faculty position at GTS is likewise such an "office" will no doubt not detain those who want to contend that the faculty have in effect resigned their positions. Moreover, since the faculty positions are arguably all lay positions within GTS, then the Board would circumvent the issue that four of the faculty happen to be ordained clergy, and so not subject to Canon I.17.8.)

The Church's Canons, however, run in both directions. As an ordained Episcopal priest, Dean Dunkle is subject to the disciplinary canons. He is canonically resident in the Diocese of Florida (where, fittingly enough, he served as Bishop Howard's point man in litigating against departing parishes). Already on the Facebook page created to support the eight faculty members, there have been calls to lodge complaints against Dean Dunkle with that Diocese's Intake Officer for violating the Canons of Title IV. The question there, however, will be whether the Bishop of Florida will want to be viewed as interfering in a matter that involves the internal governance of GTS, and that accordingly should be left to the Board.

Thus we have all kinds of balls up in the air at GTS. The faculty has organized into a union, but the NLRB will not take jurisdiction over religious schools and their unions, so the Board cannot be ordered to negotiate with it. The Bishop of Florida has putative disciplinary authority over the GTS Dean, but he likewise will probably not take jurisdiction. Whether any of ECUSA's Canons may be said to override the terms of the faculty's employment agreements again is a question without a court that can decide it. And we are not informed as to whether the faculty members even have written contracts of employment with GTS -- or whether, if they do, their employment is tenured, or is at will in some cases.

It looks, then, as though the parties will just have to come together to sort things out. And after all, isn't that the Christian thing to do?




Thursday, September 25, 2014

The Unraveling of the Anglican Communion

For some time now -- ever since ECUSA's unilateral decision to consecrate V. Gene Robinson as a bishop -- the Anglican Communion has been unraveling, but since it was such a loosely based agglomeration of churches to begin with, hardly no one has noticed. And yet, there were warnings aplenty.

From the October 2003 statement of the Primates who gathered specially in London before the consecration scheduled for November:
If [V. Gene Robinson's] consecration proceeds, we recognise that we have reached a crucial and critical point in the life of the Anglican Communion and we have had to conclude that the future of the Communion itself will be put in jeopardy. In this case, the ministry of this one bishop will not be recognised by most of the Anglican world, and many provinces are likely to consider themselves to be out of Communion with the Episcopal Church (USA). This will tear the fabric of our Communion at its deepest level ...
From the Windsor Report of a year later:
In terms of the wider Communion, and our wider relationships with a number of key ecumenical partners, the consecration [of V. Gene Robinson] has had very prejudicial consequences. In our view, those involved did not pay due regard, in the way they might and, in our view, should have done, to the wider implications of the decisions they were making and the actions they were taking....
...
There remains a very real danger that we will not choose to walk together. Should the call to halt and find ways of continuing in our present communion not be heeded, then we shall have to begin to learn to walk apart.
From the statement issued by the Primates meeting at Dromantine in February 2005:
Whilst there remains a very real question about whether the North American churches are willing to accept the same teaching on matters of sexual morality as is generally accepted elsewhere in the Communion, the underlying reality of our communion in God the Holy Trinity is obscured, and the effectiveness of our common mission severely hindered.
From the statement issued by the Primates meeting at Dar-es-Salaam (Tanzania) in February 2007:
The response of The Episcopal Church to the requests made at Dromantine has not persuaded this meeting that we are yet in a position to recognise that The Episcopal Church has mended its broken relationships... We are deeply concerned that so great has been the estrangement between some of the faithful and The Episcopal Church that this has led to recrimination, hostility and even to disputes in the civil courts....
The strained attempts by the collected Primates to hold on to unity took two directions after the Tanzania gathering: on the one hand, they placed their hopes in a new Anglican Covenant; and on the other, they tried to establish arrangements for alternative pastoral oversight within the divided churches of Canada and the United States. Both attempts came to naught.

The Archbishop of Canterbury was unable and unwilling to do what was necessary to save either of the two initiatives. Consequently, the bishops of ECUSA (who received their invitations to Lambeth as though nothing had happened) had no motivation to change course. Indeed, the latter were only too willing to see the Primates' efforts fail, without their having to do anything overt to torpedo them. And Lambeth itself was both a collegial dud (thanks to the imposed but phony indaba gimmick) and a financial disaster.

By 2008 the hostility and disputes inside ECUSA spilled over into the uncanonical depositions of four orthodox bishops -- three of them diocesan (+Schofield, +Duncan and +Iker). The lawsuits picked up in earnest, and largely remain unabated to this day. These blatantly illegal actions by the new Presiding Bishop of ECUSA directly brought about the formation of what in time became the Anglican Church of North America (ACNA). The division of ECUSA was now formal -- even if most of those whose actions had led to it refused to recognize what had happened.

Dr. Williams' dithering over Lambeth, ECUSA's thumbing its nose at him over pastoral oversight, and its continued actions against dissident bishops and clergy, greatly widened the fractures in the Anglican Communion. Over three hundred bishops from African denominations refused to attend Lambeth, and a number of the Global South primates announced GAFCON's first gathering, timed to take place before Lambeth 2008 even convened. The division within the Anglican Communion was now formal, even though again most refused to recognize what was happening.

After the events of 2008 within ECUSA, there was no longer any reason for the revisionists in ECUSA to hold back in the slightest. The 2009 refusal by bishops in ECUSA to honor a moratorium on further confirmations to the episcopate of priests in same-sex partnerships wrote finis to the career of Dr. Rowan Williams as the Archbishop of Canterbury. He had made a personal plea to General Convention not to proceed with the approval of the elections of two lesbian-partnered women to the episcopate, which that body spurned (one could say: contemptuously).

The broken Communion limped along, with all pretenses of unity ringing hollow. The seventh and last meeting of the Primates was a total failure to heal the splits within the Communion in January 2011. The paper on the "purpose of the Primates Meeting" adopted at its conclusion now reads rather plaintively in light of the widening fissures. The new Archbishop has not even bothered to try to resurrect the body, which is now irrevocably sundered.

General Convention 2012 completed the dismantling of the Windsor Report by formally (and again, uncanonically) licensing bishops to authorize same-sex blessings within their jurisdictions. Rowan Williams resigned as Archbishop as of the end of the year. His replacement, while listening to the alienated primates, has been unable to reverse the causes of their alienation, and indeed, has only added to them with the recent moves by the Church of England to authorize same-sex (but theoretically celibate) partnerships between clergy.

In short, the Windsor Report's much-touted "Instruments of Unity" have failed to fulfill their calling. The Lambeth Conference, after the precedent set in 2008, has no further Communion-wide purpose, and the Church of England will probably not agree to finance it again. The Archbishop of Canterbury has lost all his stature within the Communion, and is now having trouble even keeping the Church of England together. The Primates Meeting is dead. And the crevasses that have opened wide in the Communion have rendered the Anglican Consultative Council into a meaningless gathering for futile debates and pursuits -- much like Jonathan Swift's Academy of Lagado.

From 2003 to 2013 -- it took just ten years for ECUSA and the Anglican Church of Canada to unravel the Anglican Communion. Which fact goes to show how loosely knit it was in the first place: the rebellion against papal authority which began the movement replaced that authority with the English monarchy -- but its Erastianism could not be imposed upon the branches which the Church began to found in other countries. Those branches came to view themselves as autonomous, and none more so than the Americans, who had to fight the English for their freedom.

Yes, Americans had to fight the English, but not for their religious freedom as Anglicans. England instead fully cooperated in establishing apostolic succession in the branch that would bring about the Communion's unraveling, just 225 years later. The Archbishops of Canterbury and York who ordained the first American bishops did so on the latter's promise that "We are unanimous and explicit in assuring your Lordships, that we neither have departed, nor propose to depart from the doctrines of your Church. . . ." (see this post for more details).

So much for promises. ECUSA is now part of only one-fourth of a Communion, while the vast majority of persons who call themselves "Anglicans" are part of the other three-quarters. The Archbishop of Canterbury has cast his lot with ECUSA, as have those denominations which depend on ECUSA for financial support.

Money, however, cannot a Communion make. Instead, as ECUSA's wealth grew exponentially from the 19th to the 20th century, we must now conclude that with greater wealth came greater  irresponsibility -- just as it did with all the great and wealthy families of the world. Money, indeed, has unmade a Communion.

Meanwhile, ECUSA continues blithely along, acting as though nothing of moment has happened.

And of course, since in its own collective mind it is not responsible for anything, then of course nothing has happened.

There are none so blind as those who will not see.