Plano East. Okay, I've been hearing about this for the past week and a half, but wanted to wait until I saw confirmation. There will be a conference held in Woodbridge on January 9 and 10, 2004, to follow up on the developments with respect to the confessing movement in the Episcopal social club (I can't call it a "church"). From the announcement:

The American Anglican Council's historic conference in Dallas, Texas (known as the'"Plano" conference) was a powerful and uplifting experience of the Church, bold in standing for Jesus Christ and alive in the Spirit for the work of mission. It strengthened, encouraged and challenged all who attended.

The AAC Chapters in Virginia and Washington would like to provide a similar experience for faithful Episcopalians in our region. But while the Plano conference looked ahead to the emergency meeting of the Primates and possible realignment of the Anglican Communion, we now find ourselves facing the reality of realignment. At the "Plano-East" conference, key leaders of the AAC will inform us of the latest developments nationally and internationally, inspire us with biblical teaching and preaching, and challenge us to go forth to fulfill the Church's mission.

Details are here. Also, just to make it clear, I don't have any "inside information" on this -- I haven't been holding back or anything -- the only reason I knew about this is because my oldest daughter will be involved in the worship.

Bush 2004. Coming back from Portland last month, I had the "pleasure" of flying on the same plane with attorney Stanley L. Cohen, who was finishing his defense of the Portland Seven. (They were the rag-tag group of Islamofacists who were attempting to go to Afghanistan to fight the United States.) For the record, it should be noted that Mr. Cohen, a defender of the oppressed, flew first class. (Is it any surprise?)

Before boarding the plane, another passenger handed Mr. Cohen an anti-Bush, anti-Ashcroft political drawing. At this Mr. Cohen seemed to think he was being asked to get on a soapbox (I'm not sure why -- we were all just the passengers in the waiting area -- no news media were around) and loudly proclaimed that if George Bush won re-election in 2004, he was moving to Canada.

As though it would be a great loss to this country.

Too bad these guys never go through with their promises.

Roe, the Sequel. From today's Wall Street Journal:

Antonin Scalia was right after all. And we don't mean his prediction that the Supreme Court's Lawrence decision this year throwing out a Texas sodomy law would quickly become a vehicle for gay marriage -- which came true this week courtesy of a Massachusetts Supreme Court decision.

We mean Justice Scalia's far more prophetic dissent a few years back in Planned Parenthood v. Casey. Though that case involved abortion, Mr. Scalia's larger point was about the culture wars that were unleashed on the body politic the last time our judiciary presumed to "settle" a contentious social issue that properly rests with the people's elected representatives.

"By foreclosing all democratic outlet for the deep passions this issue arouses," he wrote, "by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish." That is one legacy of Roe v. Wade.

We were reminded of this by Massachusetts Chief Justice Margaret Marshall's 4-3 majority opinion this week defining marriage as an "evolving paradigm" and declaring there exists no "constitutionally adequate reason for denying civil marriage to same-sex couples." Can anyone doubt that the Massachusetts High Court has started another Thirty Years War?

So let's be clear. Notwithstanding headlines trumpeting that Massachusetts has just opted for gay marriage, the people of that commonwealth did no such thing. It is four liberal judges on the Massachusetts Supreme Court who, egged on by well-connected and politically powerful gay rights activists, have imposed their own moral values on the rest of its citizens.

This is no coincidence. Despite Justice Marshall's solemn talk about an "evolving paradigm," most gay rights champions don't believe Americans have evolved that much. And they know they'd have an almost impossible time getting this new "paradigm" past most state legislatures. In other words, it's precisely the American public whom they most fear and whose voice they want to keep out of this process.

So they've done what liberals so often do: Provoke some state court decisions in hopes that the U.S. Supreme Court will finally do the legislating for them. This sure beats having to persuade your fellow Americans through democratic debate. Did we mention that Justice Marshall's very first legal citation, in the second paragraph of her decision, is Lawrence?

The tragedy here is that the first casualty of an all-or-nothing court clash over "rights" is any kind of reasoned debate or workable social consensus. American attitudes toward homosexuality are plainly changing, and many companies, including the one we work for, already extend full benefits to same-sex partners. We believe that this signals most Americans are at least open to persuasion about increasing the rights of gay Americans, including but not limited to marriage.

But what the Massachusetts High Court gave America in Goodridge v. Dept. of Public Health is not an argument, much less an open debate. It is instead a unilateral declaration that the assumptions and values that have defined one of civilization's oldest and most vital institutions -- marriage -- should be tossed out the window. And if you don't agree they're going to force it on you anyway.

Millions of Americans who have other views are not going to accept this moral diktat, and so once again our politics will be polarized by the cultural furies. When the fighting starts, let's all be clear about who fired the first shot.

Seabury. After my erroneous posting about Samuel Seabury, below, the web-elves of CANN redeemed me through this posting. (I meant to mention the elves magic earlier, but got side-tracked by the four horsemen from Massachusetts.)

More on the Mass. Suicide. In his comments to one of the postings from yesterday, Peter writes, in part (read his whole comment, please):

If there is no compelling state interest in restricting marriage to an adult male and an adult female, there is none in prohibiting polygamy, marrying minors, etc. In that case, why not do away with civil marriage all together? If it means nothing more than property distribution, spousal privilege in court and tax return status. Why not replace civil marriages with private contracts between persons and get the state out of it altogether? A husband and wife can have a civil contract and be joined by Holy Matrimony. I dare say Holy Matrimony means a lot more to most couples than a license from the State. If all the "unchurched" that show up before the altar to get married is any guide.

Sorry, I meant to cut off the quote at the "etc" (which I "bolded") -- but his entire point was so good, I couldn't cut it off.

Peter is absolutely correct in this point -- under the Massachusetts majority opinion, there is now no justification in barring polygamous or incestuous marriages. Eugene Volokh, a tentative supporter of same-sex marriage (although, I gather an opponent of having it judicially mandated) makes this point very clearly:

The court reasons that "the right to marry means little if it does not include the right to marry the person of one's choice," but while it qualifies this as "subject to appropriate government restrictions in the interests of public health, safety, and welfare," it's far from clear that a court would find that "health, safety, and welfare" would be hurt by adult polygamous marriages (assuming all existing partners in the marriage consent to the addition of another). Likewise for adult brother-sister marriages; as I mentioned several months ago, I think the genetic harm argument doesn't really work here -- after all, we don't generally ban marriages between people who have serious genetic diseases, even if the odds of a defect in their children are much higher than for brother-sister marriages.

Similarly, the court rejects the government's "foster the best environment for raising children" argument by saying that "It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents' sexual orientation." Seems to apply equally to children of polygamous marriages or of incestuous marriages. In fact, why isn't the desire to have multiple committed lifelong partners, or to have a relationship with one's sibling itself a "sexual orientation"?

As they say, please read the whole thing here.

In another post, Prof. Volokh also makes the point that's maddening to those of us who take what would seem to be the middle-road of having supported anti-discrimination legislation, now having it been turned back against us:

So the Massachusetts Supreme Judicial Court's decision allowing homosexual marriage partly relied on the passage of that very antidiscrimination statute. Unless the court's argument was just makeweight (possible, but the court must have at least thought that the point would be persuasive to some readers, or else it wouldn't have included it), passage of the employment discrimination bill did take another step down the slope towards homosexual marriage, in the sense that it did make homosexual marriage more plausible.

Again, please read his whole essay.

Amend It. Today, looking at the Mass. Court decision, Senator John Cornyn said he is

concerned that Goodridge, coupled with the recent U.S. Supreme Court ruling in Lawrence v. Texas, raises serious questions regarding the future of both the family and the traditional definition of marriage throughout America as embodied in [the Defense of Marriage Act ]. The question now is whether the popular and bipartisan legislation will remain the law of the land as the people intend, or be overturned by the courts.

In light of these and other articulated concerns about the legal protection of the state of marriage, we believe it is important to consider what steps, up to and including a constitutional amendment, are now needed to protect and safeguard marriage.

I have long resisted constitutional amendments, but I think it's time. It is apparent that a thin majority of judges on a small number of courts have an extreme agenda they are trying to cram through. It's time to amend the constitution and put these renegade judges in their place.

Three partners. This statement, by the majority in the Massachusetts case struck a raw nerve with me, because it's very similar to something our minister said in his wedding sermon:

In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State.

In our wedding sermon, our pastor, Renny Scott, advised us that

There are three involved in every marriage, the Bride, the Groom, and their God.

My god is God, not the state, Mr. Chief Justice.

More on MA. With respect to the Massachusetts case, Jack asks:

I'm not a legal eagle, but what kind of polity is it where a court however Supreme can tell an elected legislature what to do? And, what if, rather than do what the MA Court has ordered, the legislature were to clearly define marriage as heterosexual, and to specifically deny the issuance of licenses to same sex couples? Not that that is likely to occur in MA, but it would be a lot of fun to watch.

On the first question, it's surprising what courts can do -- run prison systems, run school districts, and even, courtesy of Missouri v. Jenkins, 495 U.S. 33 (1990), raise taxes. But, it should be pointed out, this first question is in response to my first post (now struck out and amended, below) where I stated the court was requiring the legislature to take action. I was wrong. The court is staying it's own decree to give the legislature time to act.

On the second question -- it's do-able, but you don't want to anger the gods, err, judges.

In Virginia, as in many other states, same-sex marriage is prohibited by law. Not in Massachusetts, apparently.

The majority opinion (i.e. four judges) indicate the court was asked to re-construe "marriage" as something different, but (it seems to me) decided not to do so in order that it could address the "right to marry" question:

The plaintiffs argue that because nothing in that licensing law specifically prohibits marriages between persons of the same sex, we may interpret the statute to permit "qualified same sex couples" to obtain marriage licenses, thereby avoiding the question whether the law is constitutional. . . .This claim lacks merit.

We interpret statutes to carry out the Legislature's intent, determined by the words of a statute interpreted according to "the ordinary and approved usage of the language." . . . The everyday meaning of "marriage" is "[t]he legal union of a man and woman as husband and wife," Black's Law Dictionary 986 (7th ed. 1999), and the plaintiffs do not argue that the term "marriage" has ever had a different meaning under Massachusetts law. . . . This definition of marriage, as both the department and the Superior Court judge point out, derives from the common law. . . Far from being ambiguous, the undefined word "marriage," as used in G. L. c. 207, confirms the General Court's intent to hew to the term's common-law and quotidian meaning concerning the genders of the marriage partners.

(citations omitted).

The majority decided "Without the right to marry -- or more properly, the right to choose to marry -- one is excluded from the full range of human experience and denied full protection of the laws for one's 'avowed commitment to an intimate and lasting human relationship.'" The chief justice, for the majority, later writes "Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family -- these are among the most basic of every individual's liberty and due process rights..."

The CJ decides to employ, surprisingly enough, the "rational basis test," which is the lower standard in these type of cases (in other words, if the government shows that there is some rational basis for the challenged action, the action will stand). The CJ then says that he doesn't understand any of the rationales put forth, so this must be wrong: "The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual."

As I said below, look for an amendment to the state constitution.

Decision. Mass. Supremes find bar on same-sex marriage unconstitutional and require legislature to act. First AP story.

Opinion Here. Close case: 4-3. The Court is requiring the state legislature to re-enact legislation in a shorter time (180 days as opposed to, by my count, 259 days) than it took to decide this case. remanding the case to the lower court and requiring it to act. It is also staying its decree for 180 days to give the legislature time to act.

I suspect we will see a constitutional amendment in Massachusetts defining marriage as between a man and woman only.

D-Day in Massachusetts. I just checked the Massachusetts Supreme Court website -- today will be the decision day for the Goodrich case: the case where a number of persons are seeking to have same-sex marriages declared a right.

The decision will be available after 10 in Massachusetts.

My Fantasy. Last week Mark Byron touched off, oh, shall we describe it as a wee bit o' controversy? when he described his "fantasy" involving the death of 21 Senators. This prompted Peter Sean Bradley to whimsically note his fantasy:

my "dark thoughts" involve a rifle with a sniper scope, a time machine and Germany in 1517.

Can I tell you my fantasy? (Don't worry, it's completely "G" -rated: I'm so clueless that last week when I overheard some folks taking about Paris Hilton, I thought they meant a hotel -- only after watching football on Fox yesterday did I learn this refers to an acerebral human being.)

I'd love to have a time machine to go back to this moment:

[Jesus] went to Nazareth, where he had been brought up, and on the Sabbath day he went into the synagogue, as was his custom. And he stood up to read. The scroll of the prophet Isaiah was handed to him. Unrolling it, he found the place where it is written:

"The Spirit of the Lord is on me,
because he has anointed me
to preach good news to the poor.
He has sent me to proclaim freedom for the prisoners
and recovery of sight for the blind,
to release the oppressed,
to proclaim the year of the Lord's favor."

Then he rolled up the scroll, gave it back to the attendant and sat down. The eyes of everyone in the synagogue were fastened on him, and he began by saying to them, "Today this scripture is fulfilled in your hearing."

Every time I hear that passage read, it sends chills up my spine.


If I couldn't go back that far in time, send me back to when I was 18, so I could show myself what happens if I don't lay off the onion rings.

Guilty. No surprise, John Muhammad has been found guilty. Now starts the penalty phase. I expect a death sentence.

The Lee Boyd Malvo case should be interesting. When I saw the make-up of the jury, I thought it strongly favored the defense and thought he could go free. But then I remembered that this one is being prosecuted by Fairfax Commonwealth's Attorney Robert F. Horan Jr., a local legend.

I think you'll see Malvo convicted -- but he won't get the death penalty. The defense, by building up the "insanity defense" will be laying a large foundation of mitigating circumstances that will be successful before this jury.

Will the Gentleman who stopped and spoke with me immediately after church on Sunday please send me an e-mail or leave me a comment? I didn't get your name and I feel terrible about that.

Big boo-boo. I really goofed last Friday picking up the words of Samuel Seabury's grandson, Samuel Seabury, and attributing them to Samuel Seabury. Thank you to all those commenting for clarifying this. This is one of many reasons I love the comment feature and encourage you to use it. I try not to make mistakes but do.

What really bugs me is there was a clear clue in that first sermon that should've tipped me off. As James Manley noted "Rome did not adopt the Immaculate Conception of Mary until 1854, long after the first Samuel Seabury died." I knew that -- I should've picked up on that and looked at the date of the sermon. For some reason, when I did look at the date of the sermon I transposed the "1874" at the top to what I expected: "1784." I then compounded my error by using it to assume (and confirm my own bias) that Seabury was commenting on a recent devolopment in the Church of Rome relating to Mary, instead of the ex cathedra pronouncement of Mary's Immaculate Conception.

Blanco. The WaPo can be such a parody of itself: "...Kathleen Blanco...won a tightly contested election for Louisiana's governor...breaking a 130-year lock by white males on the job....She defeated Republican Bobby Jindal, a brown-skinned 32-year-old son of immigrants from India."

Who knows what the factors were in this race. My own anecdotal thoughts (based on talking to one person from La) is that the "Republican" tag is still more of a factor in that state than either "brown-skinned" or "female." Possibly of equal weight is "cajun" as opposed to "immigrant."

Samuel Seabury, Fundamentalist. Today, November 14, 2003, is the commemoration of Samuel Seabury, the first Anglican Bishop in the U.S. Here is a good summary of his particular importance to the Episcopal Church.

Whoops, I goofed. As noted by many in the comments, I picked up the sermon from a later Samuel Seabury. (Hang around for awhile and I'll tell you about Martin Luther's famous "I have a dream" speech.)

I wonder how he would fare today?

Look at this sermon in which he examines a particular doctrine espoused by the Anglican Church, that our Lord's human nature "was, from the first moment of its existence, void of all spot or taint of sin."

Let us walk with Bishop Seabury to see how Doctrine is derived.

First, he tells us we believe this doctrine "because it has been delivered to us by the Church as a necessary article of the Christian faith." It traces back to "[t]he apostles, themselves, or at least their successors at a very early age of the Church..." and is " necessary to guard the original faith from the assaults and wiles of those who sought to deprave it by false and heretical teaching."

Is tradition alone, Rev. Seabury, sufficient grounding for Doctrine?

this prescription, which may plead apostolic tradition in its favor; this teaching of our common mother, which ought in reason to have far more weight with us than the wisest of human parents, is a sufficient ground for our belief in the doctrine, at least in the first instance, and until we shall be qualified to try our faith by the ultimate standard of Holy Scripture.

(emphasis added).

How should we proceed?

...you proceed, as in an humble and reverential spirit you properly may, to compare the teaching of the Church with the infallible dictates of Holy Scripture...

Bishop Seabury continues: "Human testimony is the ground of human faith, or that which we exercise in the common affairs of life. Divine testimony is the ground of divine faith, or that which is required of us in order to our everlasting salvation."

In the second portion of his sermon, he turns from the grounds of Doctrine to "the use of" or reason for the Doctrine. As Seabury puts it: "For God does nothing for naught, and weak as we are we can always discover enough in His works to excite our admiration of His wisdom and goodness."

The rest of the sermon is excellent and I commend it to you -- it is, essentially a refutation of what was then a recent development in the Church of Rome, the Doctrine of the Immaculate Conception of Mary. The importance for us is that he develops Doctrine based on the Apostolic teachings handed down, subject always to the ultimate standard, the Word of God.

What a fundamentalist!

More. From this it looks like Seabury only bases Doctrine on two of the three legs of the Anglican stool. What about the third leg, reason?

In this sermon he does reaffirm the three legs, but again note that it must comport with "plain Scripture:

...truth which is conveyed to faith in regard to the invisible and spiritual must correspond to all that is expressed to the senses in regard to the visible and material, provided that nothing be received which is contradictory to reason and plain Scripture.

Shut My Mouth. There are some really great bloggers out there -- better than the drivel you find on even the best op-ed pages. Nevertheless, sometimes there is one that makes me want to turn this blog into a redirect. This is one of those times -- go read "Why Robinson Matters"

NOW!

This is Lileks-quality work folks.

A Little Knowledge is Dangerous. I know very little about the Law of Schism -- so I don't offer any of this as a legal opinion, I am placing it out there for those who might be interested to start getting familiar with some of these things.

First, both of the First Amendment religion clauses -- freedom of religion and the establishment clause work to try to keep the courts and government out of arbitrating church disputes. Unfortunately, it doesn't happen.

A few key cases (in chronological order, to cut to the chase, skip down to Wolf):

Watson v. Jones 80 U.S. (13 Wall.) 679 (1872). Civil War case -- no use of the First Amendment. See also the Brennan concurrence in a 1970 case.

Kedroff v. St. Nicholas Cathedral 344 U.S. 94 (1952). This is notable because it's the first application of the 1st Amendment clauses to the Law of Schism. It's really not applicable to the present (on the facts) because the state legislature passed a law determining who would be in control of a denomination. ("By fiat [the state law] displaces one church administrator with another. It passes the control of matters strictly ecclesiastical from one church authority to another. It thus intrudes for the benefit of one segment of a church the power of the state into the forbidden area of religious freedom contrary to the principles of the First Amendment." )

Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440 (1969); Here the Court stated "...there are neutral principles of law, developed for use in all property disputes, which can be applied without 'establishing' churches to which property is awarded. But First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice." The Court then stated:

The Georgia courts have violated the command of the First Amendment. The departure-from-doctrine element of the implied trust theory which they applied requires the civil judiciary to determine whether actions of the general church constitute such a "substantial departure" from the tenets of faith and practice existing at the time of the local churches' affiliation that the trust in favor of the general church must be declared to have terminated. This determination has two parts. The civil court must first decide whether the challenged actions of the general church depart substantially from prior doctrine. In reaching such a decision, the court must of necessity make its own interpretation of the meaning of church doctrines. If the court should decide that a substantial departure has occurred, it must then go on to determine whether the issue on which the general church has departed holds a place of such importance in the traditional theology as to require that the trust be terminated. A civil court can make this determination only after assessing the relative significance to the religion of the tenets from which departure was found. Thus, the departure-from-doctrine element of the Georgia implied trust theory requires the civil court to determine matters at the very core of a religion - the interpretation of particular church doctrines and the importance of those doctrines to the religion. Plainly, the First Amendment forbids civil courts from playing such a role.

The Serbian Eastern Orthodox Diocese v. Dionisije Milivojevich, 426 U.S. 697 (1976) Here the Court held [see pp. 720-25] that the power to reorganize the dioceses of a hierarchical church in this country, was ''at the core of ecclesiastical affairs'' and a court could not interpret the church constitution to make an independent determination of the power but must defer to the interpretation of the body authorized to decide. (Also, note the dissenters, White and Rehnquist, who would be on opposite sides the next time in...)

Jones v. Wolf 443 U.S. 595 (1979). In short, if you followed the Serbian Eastern Orthodox Diocese case mentioned above, you would think the case would go one way, but it went a different way. The local church split and took their property with them. A minority petitioned the hierarchical denomination which sided with the denomination. The state courts, going back to the Watson v. Jones principles, looked first at what the deeds said, what the state laws on trusts said, etc. before deferring to the hierarchical church.

As a result of this case, the ECUSA adopted the Dennis Canon*. But that's the subject for another discussion.

-----------------
* See Canon I.7.4, of the Episcopal Church USA, which states: "All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located."

Sisyphus for a 2 year old. One of my children's favorite little ditties has been the Michael Finnegan song:

There once was a man named Michael Finnegan
He grew whiskers on his chinnegan
Shaved them off but they grew in again
Poor old Michael Finnegan - begin again

Time to go pray with my baby and sing her this, her favorite song. [midi]

Church Property. One of the huge issues, now that the leadership of the ECUSA has abandoned the Christian faith is control of local church property. The apostate leadership, realizing it's going to lose a large number of "cheerful-giving" Christians, is looking to seizing property to keep itself in chicken dinners until, well, kingdom come ("not that we really take that kind of thing literally")

There's part of me that thinks, if that's the case -- let's adopt a "poison pill" strategy. Mortgage all church property to the hilt and transfer the proceeds to the faithful churches in Africa. Then have the congregation and ministers walk out, leaving the property and debts to the ECUSA.

Of course, that wouldn't be a "good faith" type way to deal with this.

But it's fun to think about.

Actually, this is a serious issue. I walk around my own sanctuary and church grounds and see the discrete plaques -- "this pew was given to God in memory of..." These are all good faith gifts and there is a stewardship duty to protect them and to ensure that they are used to glorify God.

My family donated some altar clothes -- the Easter whites -- in memory of my Grandmother. It tears me apart to think that these could be desecrated one day to "bless" what God has not blessed.

In her address to the AAC convention, Diane Knippers observed:

I’m also hearing from laypeople who are beginning to realize what is at stake in terms of church property. They are willing to fight for it, but not sacrifice their faith for it. We do not want valuable resources to be at the disposal of those who have abandoned the faith. But we are willing to sing,

Let goods and kindred go, this mortal life also;
The body they may kill: God’s truth abideth still,
His kingdom is forever.

More Thanks for the comments folks -- these are all excellent. I do want to highlight one from an attorney who is actually handling a similar case in California -- Peter Sean Bradley, the fifth comment.