Monday, March 2, 2015

ECUSA and the Freedom of Association: a Showdown Is Coming

Litigation between the Episcopal Church (USA) and its parishes has been ongoing for more than fifteen years. It is a myth to say that the Church did not start any of the lawsuits: you can read all of the dreary details in this post. The Church and its several Dioceses, in fact, are responsible for more than 90% of the cases that have been filed.

The first Diocese, however, did not vote to dissolve its union with General Convention until December 2007. Before that time, the cases all involved individual parishes that attempted to withdraw from their respective Dioceses. Thus, the All Saints Waccamaw case in the Diocese of South Carolina began in 2000 (it was not finally resolved until 2009). So also did the case of St. Andrew's, in Morehead City, North Carolina, which was finally decided in June 2003. The former was decided for the parish; the latter for the Diocese.

And that has pretty much been the story of the parish cases: mostly wins for ECUSA, with some occasional losses (particularly in those States which still adhere to the requirements of the Statute of Frauds, which requires that in order to create a legally binding trust in real property, there must be a trust instrument in writing that is signed by the actual owner of the real property).

The details, again, are all in the post linked before. By my count, 40 of the 91 cases listed resulted in legal victories at the trial or appellate level for ECUSA; just two parish cases (All Saints and the Good Shepherd San Angelo case in Texas) went the other way, but three of the five cases involving Dioceses resulted in rulings against ECUSA. A fourth diocese case (San Joaquin) is on appeal; the fifth one (Pittsburgh) gave a victory to ECUSA on the basis of a very strained reading of the effect of a stipulation between the parties.

It is a legitimate query to ask why the results of the parish cases are so lopsided in favor of ECUSA, while the results of the diocese cases go just the other way. For the parishes, most of the decisions turned upon explicit language in their own bylaws that made them "perpetually" subject to their Diocese and ECUSA. No such language exists in any of the Dioceses' governing documents, however. For the cases involving them, the explanation lies in the well-established freedom of association, which is a fundamental right enshrined in the First and Fourteenth Amendments to the United States Constitution. It holds that just as no one can be prevented by the government from joining a group, so also the group may not go to court to prevent a member from leaving it. "Freedom of association therefore plainly presupposes a freedom not to associate," as the Supreme Court put it in Roberts v. U.S. Jaycees, 468 U.S. 609, 623, 104 S. Ct. 3244, 3252, 82 L. Ed. 2d 462 (1984).

The liberals in ECUSA have a very difficult time trying to understand why their Church should be subject to such a doctrine. For them, the union between a Diocese and General Convention is an ecclesiastical one, and as such, they claim, civil courts should be precluded (by that same First Amendment!) from examining or questioning it in any way.

A moment's reflection will expose the flaws in that argument (not that ecclesiastical liberals ever pay any attention to logic or reason). ECUSA is, ecclesiastically speaking, a denomination -- but that says nothing about what it is in the eyes of the law. In order to sue or be sued in a civil court, for instance, ECUSA has to be a juridical person, not just an ecclesiastical one. Which is to say, it has a secular existence in the eyes of the law: it is, as noted here many times, an unincorporated association that was organized at common law in 1789, and not licensed or chartered by any one particular State. (On the other hand, ECUSA's corporate arm, the Domestic and Foreign Missionary Society, is a religious corporation chartered by the State of New York.) 

Ecclesiastically speaking again, ECUSA may make its own rules (called canons), which -- to the extent they are ecclesiatical -- may not be examined or countermanded in any civil court. But as a secular association, ECUSA is at the same time subject to the civil laws of each State in which it operates, as well as to the civil laws of the United States (to the extent they may apply to it). And one of those laws is the freedom of association guaranteed by the First Amendment.

What the First Amendment says is that as an association, ECUSA may not constitutionally restrict the rights of its members to associate or to disassociate. The most it can do, under the cases that have been decided to date, is require a member to pay any previously owed dues before recognizing his withdrawal. Thus for an organization like ECUSA which does -- not yet -- have any membership dues, there is nothing it can do in law to prevent a member diocese from pulling out, and associating (or realigning) with another denomination.

Speaking from an ecclesiastical standpoint, ECUSA may attach all kinds of ecclesiastical sanctions to the withdrawing member: it can refuse to recognize its clerical orders; it can ask other denominations not to recognize the member as an ecclesiastical body; and it can (but only symbolically) "depose" the withdrawing member's clergy, i.e., strike them from the rolls of its ordained ministers.

Other denominations, however, are just as free to do the opposite, so the effect of any such ecclesiastical sanctions may be limited. My main point stands: any unincorporated association, whether religious or secular, may not prevent one of its members from withdrawing (except temporarily, until back dues are paid). 

In some of their court filings, ECUSA's attorneys have argued that under the "freedom to exercise its religion" also guaranteed by the First Amendment, ECUSA may prevent dioceses unilaterally from withdrawing (without General Convention's consent). This is just the same old fallacious argument in another guise. ECUSA wants to have its cake and eat it, too: it wants to be able to go into court to claim the bank accounts and real estate of withdrawing members, but it does not want to incur the civil consequences of being a juridical person entitled to sue -- which means being subject to the general civil law.

Moreover, ECUSA has  never tried even ecclesiastically to place any limits on the ability of its member dioceses to withdraw. If there were any such language in the Constitution or Canons, it still could not be enforced in a civil court, due to the First Amendment, so its practical effect would be useless.

These points are very plain and straightforward. Yet ECUSA is spending tens and tens of millions of dollars on fighting against them in the courts. And do you know what any reasonable attorney could predict? Simply this: given the jurisprudence on the freedom to associate, ECUSA's arguments, such as they are, will lose every time.

So why is it spending so much money on a futile legal dispute? Ah, that is the question. Whenever someone who is wealthy as ECUSA is spends so much on an uphill legal battle, which it has no rational hope of winning, the motive has to be simply to hope to win by outspending one's opponent. Make it so costly for them that they will just fold their tents and walk away from all their property.

The strategy did not work in Illinois. And it has not worked to date in Fort Worth or South Carolina; I have little difficulty in predicting it will not work in San Joaquin. The decision in Fort Worth has just come out, and confirms what I wrote above; the one in South Carolina (affirming the trial court's ruling) is at least a year away; and the one in San Joaquin is probably eighteen months to two years away. But at the end of it all, ECUSA will lose, and lose big -- especially after having spent so much money.

And, really -- it couldn't happen to a nicer bunch of people. Watch this entire issue be swept under the rug at the coming General Convention -- watch them approve the next triennial budget without allowing any discussion (let alone itemization!) of more than $40 million in litigation costs. Watch 815 hide its head in the sand as it is presented with an order to pay still more millions of dollars to Bishop Lawrence's diocese to reimburse it for its attorneys' fees. Watch for the same thing to happen again in Texas. They must know what is coming, but they will not publicly acknowledge it.  

That is precisely why ECUSA and 815 will deserve what is bound to happen.

Wednesday, February 25, 2015

A Rule of Law, or of One Man?

Capitol Hill is today, for better or worse, the last bulwark of this country's Rule of Law. If the Republicans -- given a majority in both Houses in order to stop the administration's lawlessness -- cannot hold the line against Obama's illegal amnesty measures, then the Rule of One Man will have triumphed over the Rule of Law. The Members of Congress might as well go home with their tails between their legs, and stop drawing their salaries, because they will not have earned them.

Fact: the Senate Democrats, mustered by the scurvy Harry Reid, insist that Congress appropriate money for Obama's administration to do something which Congress never authorized it to do.

Fact: If Congress did not authorize the administration to allow aliens here illegally to get work cards, Social Security numbers, drivers' licenses and three years' back worth of Earned Income Tax Credit, then the administration's proposal to give them all those things anyway is unconstitutional.

Fact: If the administration wants to operate outside the law, Congress has no obligation to vote it the money it needs to do so -- in fact, it is just the opposite: Congress must withhold that money, or it will become just an enabler of the Rule of One Man, and might just as well, as I say, go home in disgrace.

Fact: If the Senate Democrats and Dirty Harry Reid want to prevent the Department of Homeland Security's appropriations bill from passing unless it includes funds for One-Man Rule, I say: Let them! We know they care nothing for the Constitution or their oaths of office, so why should anyone even bother to give them the time of day?

Fact: If the DHS appropriations bill does not pass, guess what? Ninety percent of DHS will go right on operating -- just without the funds to do more illegal things than it is already doing. And those who are required to show up to to work without being paid may begin to learn what it means to work for a lawless administration.

Fact: Yes, the Department of Homeland Security is already illegally issuing work permits to those aliens who are not entitled to them under the law: since 2009, when Obama took office, it appears to have issued 7.4 million of them. So what's another paltry 9 million? We have One-Man Rule already, and have had it for six years.

Fact: Although Obama ought to be impeached over this, as well as over so many other of his acts contrary to the country's laws, Congress just will not do it. The House of Representative has the votes to pass a bill of impeachment, but the Senate has nowhere near the 67 votes needed to convict. Which is to say: there are at least 21, and potentially as many as 54, traitors to the Rule of Law now sitting in the Senate. And we elected them -- every damned one.

Where, then, does that leave the country? In the hands of a scofflaw who has Congress buffaloed. A scofflaw who vetoes the Keystone Pipeline bill because it "infringes upon his executive prerogatives", while he goes right on infringing on the prerogatives of the legislative and judicial branches with impunity.

I'm with Ann Coulter on this one:
If a Republican majority in both houses of Congress can't stop Obama from issuing illegal immigrants Social Security cards and years of back welfare payments, there is no reason to vote Republican ever again.

Monday, February 23, 2015

SC Court Makes Short Shrift of ECUSA's Motion

As reported here, the Episcopal Church (USA) and its rump group in South Carolina filed a 182-page motion for reconsideration with Circuit Court Judge Diane S. Goodstein, asking her to reverse her earlier decision in favor of Bishop Lawrence, the trustees and the parishes of his Episcopal Diocese of South Carolina. Late this afternoon, Judge Goldstein filed a response denying their motion.

Once you get past all the parties who had to be served with it, Judge Goldstein's order disposing of ECUSA's motion is just two pages in length. She first notes that the largest part of the motion was simply a regurgitation of the draft judgment ECUSA had submitted at the end of the post-trial briefing, and the arguments it had made during the trial -- all of which she had rejected in her 46-page opinion finding in Bishop Lawrence's favor:
This matter is before the Court by way of Defendants' motion for reconsideration brought forth pursuant to South Carolina Rules of Civil Procedure 59(e). The Court has studied Defendant's lengthy motion extensively and oral argument would not be of assistance to the Court. The Court finds that the motion raised no novel issues for the Court's consideration with the exception of the doctrine of judicial estoppel raised on pages 47 and 48 of Defendants' Motion. Large portions of the motion are simply the proposed orders previously submitted to the Court or reiterations of the Defendants' positions at trial. 
Next Judge Goodstein addresses the defendants' judicial estoppel argument. Her explanation of the doctrine is as good as I could give, and is further grounded in applicable South Carolina precedent:
The Court finds that the Judicial Estoppel argument is without merit. The South Carolina Supreme Court defined Judicial Estoppel as "(l) two inconsistent positions taken by the same party or parties in privity with one another; (2) the positions must be taken in the same or related proceedings involving the same party or parties in privity with each other; (3) the party taking the position must have been successful in maintaining that position and have received some benefit; ( 4) the inconsistency must be part of an intentional effort to mislead the court; and (5) the two positions must be totally inconsistent." Cothran v. Brown, 357 S.C. 210, 215-16, 592 S.E.2d 629, 632 (2004).
The ECUSA attorneys had argued that in the All Saints Waccamaw litigation, that began in 2000 under Bishop Lawrence's predecessor and had finally been decided only in 2009, the then Episcopal Diocese of South Carolina had argued that parishes could not amend their articles so as to leave the Diocese, and that the Dennis Canon prevented any parish from taking its property with it. They noted that under Bishop Lawrence, the Diocese reversed those positions -- after the South Carolina Supreme Court held that the Dennis Canon had no legal effect in South Carolina and that nothing in the governing documents prevented All Saints from amending its corporate articles, Bishop Lawrence not only had declined to petition for review of the decision by the U.S. Supreme Court, but he had even given quitclaim deeds to each of his parishes in recognition of the fact that the Diocese had no legal interest in their properties.

So, ECUSA argued, Bishop Lawrence should have been prevented, by the doctrine of "judicial estoppel," from so changing course and citing All Saints as a precedent to Judge Goodstein. Instead, they contended, he was required to stick to the same old arguments his predecessor had made before the South Carolina Supreme Court's 2009 ruling.

Except -- their argument overlooked one small but highly significant detail: as a decision by the State's highest court, All Saints Waccamaw is binding on all churches similarly situated -- including specifically, the Episcopal Church which had lost its argument to that Court -- and on all lower courts in South Carolina. Look at how Judge Goodstein disposes of ECUSA's present argument in one paragraph:
The All Saints matter is a separate and distinct matter from the current litigation. Further, the positions of the Diocese in All Saints were found to be incorrect. If the Defendants' argument in the instant action was correct, no party previously adjudicated to be wrong would be able to correct their conduct in compliance with a court's holding. Such a result would be contrary to all sense of justice and order. Further, there is no evidence that the inconsistent positions were part of an intentional effort to mislead the court. The Doctrine of Judicial Estoppel does not apply.
So much for that futile argument, ECUSA. But Judge Goldstein reserves the best for last. Here are the final three lines of her order, reproduced exactly as she wrote them, with her final punctuation:
With regards all other matters presented in Defendants' Motion for Reconsideration, they are hereby DENIED.  
In light of this order and the earlier one by the Illinois judge a few days ago, one gets the feeling that the courts these days are getting somewhat disgusted with ECUSA's inability to understand when its opponents have won.