Tuesday, April 13, 2010

Happy Birthday, Mr. Jefferson

There were three things that Thomas Jefferson wanted to be remembered for: author of the Declaration of Independence, founder of the University of Virginia, and the Statute of Virginia for Religious Freedom. How appropriate that today, on all days, the Supreme Court of the Commonwealth of Virginia chose to hear oral arguments on the appeal of The Episcopal Church to the Circuit Court victory of the Virginia churches that voted to separate from the Diocese of Virginia and join CANA in 2006.

It was a clear crisp morning in Richmond as I stood in line to get into the court building. Eventually, the courtroom would be so packed, a video feed was put into other rooms so that those left without a seat could watch the proceedings in the courtroom. Even before the courtroom doors open, I could see Bishop Martyn Minns, Bishop of CANA, and Bishop Shannon Johnston, the new bishop of the Diocese of Virginia, chatting amicably outside the courtroom doors. I also saw the rector of The Falls Church, John Yates, engaged in polite conversation with the priest-in-charge of the Episcopal congregation set up by the Diocese of Virginia. For many it was a chance to see old friends - and old collegues as the attorneys came in and filed toward the front to take their seats and wait their turn.

First up was George Sommerville, who said he was for The Episcopal Church but was actually for The Diocese of Virginia. Of all those who spoke - he probably was the least interrupted, at least at first. Once the orals got underway it was clear that the justices were not that interested in listening to presentations but to ask their own questions and in many cases grill the attorneys on both sides regarding the points of the case.

The questions were familiar ones - what is a separation, what is a branch, was are the neutral principles, has a separation occurred, and the justices grilled the attorneys on these points over and over again.

Heather Anderson was then up to speak for The Episcopal Church and she set out her ambitious outline for what she wanted to speak on, only to be interrupted - as George Sommerview was - on particular points by the justices. A highlight for me was when she asserted that there is no structure in the Anglican Communion. I guess that meeting in Jamaica was - what?

Gordon Coffee introduced Steffen Johnson who spoke for the Virginia churches that separated from the Episcopal Church and joined CANA. It wasn't long either before the justices were peppering him with questions as well.

Duncan Getchell, the Commonwealth of Virginia Solicitor General was impressive, speaking to the constitutionality of Statute 57-9, but also providing context for the justice questions. They seemed to give him more speaking room than the attorneys and he made some excellent points to the constitutionality of the statute as well as calmly and succinctly answering the justices questions. Very impressive.

And then it was over. It went so fast, it was hard to believe it was over - but the fact many of us on both sides had the run over by a truck expression on our faces. It was exhausting, sitting there listening intently, praying fervently, and mindful of old friends on the other side of the aisle.

Now the case is in the hands of the Supreme Court of Virginia. A ruling is expected around June 11th. Stay tuned for more. Heading back on the road now.

UPDATE: Was thinking in the car on the way home about Steffen Johnson's performance in front of the Supreme Court. If we were thinking that he would be able to make oral arguments like someone participating in a debate team - well, think again. It was clear that the justices had questions on their mind and that is what they wanted to spend the time doing. If I could describe Steffen's performance I would call it "grace under pressure." That was how Ernest Hemingway described courage and that was what Steffen demonstrated as he took volley after volley from the justices - grace under pressure.

One of the attorneys - who has clerked at the VA Supreme Court when he was first starting out in law - said that it's difficult to discern what the justices may be thinking by the questions they ask. Some of the questions asked by the justices were thoughtful, illustrating that they have read the briefs and they have read the decision and it's accompanying exhibits. Some seemed to be curious and asked curious questions.

One of the questions asked over and over had to do with defining a division. It was quite an interesting entry into the events of today, since the best illustration of division was sitting right in front of the justices, pouring out into other hearing rooms where the court hooked up live video feeds. How does one know there's been a division? The energy in the room - marked by well representation from all sides - was a leading indicator. If the Episcopal Church was serious in maintaining in front of the Supreme Court that there has been no division and what constitutes (and when questioned repeatedly about whether CANA was a branch from that division, Heather - representing The Episcopal Church - finally responded that she did not know) - it might have been better if all that energy coming from the Diocese's headquarters just a stone's throw from the court had stayed over at St. Paul's and out of the court room.

As it was, the energy in the room demonstrated why the lawmaker who first introduced VA Statute 57-9 was wise in finding a way to settle property disputes without warfare - by the simple democratic principle as a vote of the majority.

More time was taken on defining what constitutes a branch - perhaps illustrated best by what happens to a river when it "branches" off from the original river. It started from a common point and then branches off, becoming a separate entity though one can trace its origin to the first river. The Virginia congregations voted to separate, branching off from The Episcopal Church - it's point of origin - and joining with another branch of the Anglican Communion. It's connection remains as a point of origin of the Episcopal Church, again this was demonstrated by the remarkable extensions of hospitality outside the court room doors, but it is also clear that the Virginia congregations joined another branch of the Anglican Communion demonstrated by the presence of two American bishops in the Anglican Church of Nigeria - a fellow province as is The Episcopal Church in the Anglican Communion.

It was remarkable that The Episcopal Church did not dare to speak the name "Anglican Communion." Heather waved it off, saying that there was no structure (despite the fact that the Archbishop of Canterbury himself has indicated that he views "the Church" as the Anglican Communion and keeps attending these structural gatherings, such as the gathering of the Primates, the ACC, the Joint Board of Primates and the ACC (which is morphing into a Standing Committee of the Anglican Communion) and the gatherings of the Primates themselves.

In the next two months, it is probably the best idea just to keep this matter in prayer. There really are no winners in this litigation - and here at the Cafe we continue pray that we can mark the Archbishop of Canterbury's charge at the Church of England Synod this year to seek out and indeed find "the vehicles for sharing perspectives, communicating protest, yes, even, negotiating distance or separation, that might spare us a worsening of the situation and the further reduction of Christian relationship to vicious polemic and stony-faced litigation."

It's still not too late.

And so this is a dedication to the Episcopalians in the court room today. Yes, and Heather too - I saw her after the hearing and she was standing outside the court room door and I have to say - even though I strongly disagree with her assertions - she too gave a very brave performance.

And to all those who have been in the trenches together these many, many years - our fate is now in the hands of five men and women. But it is God who does the calling. May we hear His voice and follow Him - where ever He may lead.

What else can we do at this hour but pray?

28 comments:

Martha said...

Mary, thanks SO much for this update. The paragraph beginning with "Gordon Coffee..." is cut off at the end.

Anonymous said...

I saw a lot of confidence of TEC's side. First time ever.

Steven in Falls Church said...

BB -- Thanks for the update. I heard all but five of the justices had to recuse themselves. Which five justices were participating in argument?

Anonymous said...

Steven, that's not exactly right. The Supreme Court has 7 justices. Goodwyn, Lemons, and Mims recused themselves. One of the senior justices (Lacy) joined the remaining four to make the group of five that heard these appeals.

Anonymous said...

BB, not surprised that the judges jumped right in with questions as each side began to make its argument - that's the normal course of events in an oral argument, especially when the judges are engaged and interested in the dispute before them. Thanks for updating us today.
-- BJM3

Anonymous said...

You have done a good service to all of us, Baby Blue-- on both sides of the ecclesiastical aisle. Thoughtful, measured, kind, hopeful, humble... it is hard to do better than that. I honor your vision and voice.

Anonymous said...

Hmm, 7:15 comment showing BabyBlue to have been wrong on several points now mysteriously gone. Censorship isn't exactly the way to honor Jefferson.

Anonymous said...

No oral argument outline ever survives contact with the court. This was what lawyers refer to as a "hot bench." Interesting to me that the constitutional arguments didn't get a lot of time. Indicates that this is going off on whether the facts fit into the Division Statute's terminology on such items as "division" and "branch". This probably gives a little encouragement to the Diocese. Court can't rule against them without grappling with the constitutional issues. If it's a matter of statutory interpretation, court can go their way. If the disposition swings on interpretation of Virginia statute, it will be nearly impossible to get it up to the Supreme Court of the United States.

Scout

BabyBlue said...

Sorry, anon, but if you don't know why Hagrid keeps tossing you out the door - please read the posting again. Feel free to share your observations of the day - but no mean stuff. Tearing down someone else's opinion to elevate your own does not make Hagrid a happy giant.

bb

BabyBlue said...

As we said earlier, Anon, you are free to post your own insights into your experience at the hearing today - but please be gentle. Your stories are important - but kindness in telling them at this point is greatly appreciated.

bb

Londoner said...

BB - don't worry if the buildings are lost....we can find other rain shelters! Important to keep all this court and property stuff in perspective i.e. we ultimately don't need the buildings....maybe easy for me to say as I am not (yet) in your position but I think this is a liberating thought which I hope encourages you all

Daniel Weir said...

A friend who serves an ACNA parish told me that he has yet to meet someone who walked away from buildings who wasn't glad they did.

Steven in Falls Church said...

The fact that the justices did not dwell on the 57-9 constitutionality question suggests that they believe the law survives the constitutional challenge. The justices instead focused on the factual questions of whether a division occurred and whether CANA is a branch of that division. The record at trial reflects the state of TEC as of 2007, but much has transpired since then that gives even more weight to the division argument (e.g., disaffiliation of whole dioceses from TEC, ACNA, ++Duncan, etc.). If the justices were to reverse and remand on the grounds that the trial court did not sufficiently find the existence of a division, this may be an opportunity for introduction of further evidence or for the ADV parishes simply to re-file their 57-9 petitions, based upon the most recent developments. At this stage, extending the litigation clock would probably be more to TEC's and the Diocese's disadvantage as they appear to be low on cash according to recent news reports.

Anonymous said...

As a general rule, I don't think you can tell much about the possible outcome from the questions judges ask.

Sarah Boyle Webber said...

Have been thinking of you and praying for you all week. Thanks for the update.

DavidH said...

Steven, you do a good job in the spin department, but that is far from the only reasonable interpretation of the justices' focus. I don't think that's even the most likely interpretation. And although I do think the Supreme Court of Virginia's opinion is not likely to end this litigation altogether, I think it's safe to conclude that the opinion will mean the end of 57-9 one way or the other (in Virginia courts, anyway).

Kevin said...

DavidH

Pot & Kettles??

"I think it's safe to conclude that the opinion will mean the end of 57-9 one way or the other (in Virginia courts, anyway)."

Why is it safe to conclude? What is the basis of your conclusion? We have Steven's opinion that amount of time spent is a indicator he used, however for you all we have is an attack, declaring "spin" then a jump to a conclusion without any justification.

Anonymous said...

those who have suggested that it's difficult to predict a result from the exchanges in an appellate courtroom have a valid point. I've read these things quite incorrectly in the past, and I wager I've spent more time in front of appeals courts than anyone commenting here. Nonetheless, one can pick up on some elements of the decision-making process. Here, the relative emphasis on the components of the division statute, instead of the constitutional arguments, either indicates that the court wants to avoid a constitutional disposition (and courts should avoid constitutional dispositions if there are other grounds on which they can rule) or that, as Steven suggests, they do not have sufficient numbers on the panel to invalidate the statute for constitutional reasons, or that they are totally convinced that the statute passes constitutional muster. I think those are the only three possibilities. So they hone in on whether the elements of the statute are satisfied.

My sense is that they were not buying that the CANA crowd was reacting to a "division" within the church that created a "branch." Johnsen's argument that CANA is a branch of the Episcopal Church for purposes of the statute, but for no other purposes seemed to fall flat (as it well should). I don't think anyone here on either side of the issue views the CANA departees as branches of the Episcopal Church. The position of the Episcopal Church (and the Diocese, but not as central to the latter's argument) is that the "division" that the statute contemplates is one which the polity of the church agrees upon and establishes. That did not happen here. Those who left just left without any process at the Church level. I think that concept was getting some traction with the court yesterday. Knowing what it all means as to the ultimate decision is a few weeks away.

Scout

Anonymous said...

PS - in BB's account there is reference to "an Episcopal congregation set up by the Diocese." In the context of the post, it sounds like it may be in Falls Church. Does this mean that there are now three Falls Churches? There is the Falls Church, the Falls Church composed of the departing group, and a Falls Church that was "set up" by the Diocese? Why would the Diocese want another Episcopal Church in the same Parish? Why wouldn't someone like me, who worships at the Falls Church, know about the third church? It's all very confusing. Maybe it was somewhere else.

Scout

Kevin said...

@Scout - BB term would be accurate to describe the group meeting in the Fall Church Presbyterian fellowship hall, because the diocese did have to set them up, some of the people may have left the larger body across the street, but none of the clergy and thus they are a mission church. Unlike the other splits where there is a division of assets (in my use, including clergy and staff), the group had no clergy and no staff and only a few liturgical items (which very important to a service, technically not that expensive) and this diocese had to set up the administrative structures and clergy, everything for this group of people. Not three, there are two, but BB would be accurate in her use of the term (if DioVA did nothing, they'd most likely disband).

Anonymous said...

I was not there, but was the argument that CANA is a branch of TEC, or that there was a division within the episcopal church, with the CANA churches splitting off and joining another branch of the Anglican Communion?

Though I'm not sure this line of reasoning is terribly significant. I seem to recall the trial judge relying primarily on the dictionary to determine what words mean.

Anonymous said...

What's most depressing about this is that if the ABC had made a statement declaring TEC's actions as a church-dividing heresy, throwing them out, and recognising ACNA/CANA as the replacement province then the arguments in the court would have been all over and ACNA would not only have the property of the Virginia 11 - but all TEC"s property in any state that accepted Virginia's precedent


When we think about primates meetings or dithering or "dialogue" or "negotiation" and especially when we think about the ABC - always remember that.

This much is clear from the questions from the bench.

DavidH said...

Kevin, I didn't attempt to provide justification for a reason. All anyone has are opinions at this point -- there are no proofs to be had.

But if you'd like an explanation, here you go. What's about to happen is that Virginia's highest court is going to rule on the meaning and, possibly, the constitutionality of Va Code 57-9. They are the last word on the meaning of the statute. Period. If the CANA folks didn't prove what they needed to prove, then they don't just get to keep trying. So either the 57-9 lawsuits end in favor of the CANA folks or they end in favor of TEC and the Diocese of Virginia. The end of 57-9 either way (with respect to this litigation).

Also, aside from Steven's hypothesis, the statutory focus of the justices could easily mean that they intend to interpret the statute to avoid constitutional issues, which would mean as TEC and the Diocese of Virginia say.

Anonymous said...

Kevin - The Falls Church has all those items, but they are being used (without permission)by people who left the church and have not yet released the buildings, and property. All the clergy also have departed. That TFC had to find replacements until property issues are resolved does not make them a creature "set up" by the diocese, except, I guess, to the extent that The Falls Church has always been a church "set up" by the diocese. Clergy in the Episcopal Church is always obtained through the Diocese, so I don't think that's a matter of any significance in this context. I guess I'm relieved to find out that BB's reference is to the Falls Church (Episcopal), and not yet a third Falls Church.

Scout

Kevin said...

@DavidH - So when Steven gives an opinion (which he shared the reason for it) you declare it "spin" but when you make an attack on another reasoning and insert a confident counter point without any backup it's merely stating an opinion?

Scout - If I may please adopt the logic of DavidH - You're wrong.

DavidH said...

Geez, Kevin, way to be overly contentious. Many opinions are spin. Nor am I entirely opposed to spin. Those who read it just need to be aware that it is spin. If it makes you feel better to label my posts as such, be my guest. I don't really care.

Also, this is the Internet. So if you want to believe Steven's erroneous legal suggestion -- that 57-9 will just keep on swirling around at the center of this litigation, and the congregations can just keep filing lawsuits and having new trials on the same claims and issues -- again, be my guest.

Anonymous said...

Kevin - What am I wrong about (no doubt a great many things - but it would help to have some specifics)?

Scout

Kevin said...

Scout - Having a little fun with DavidH's logic ... following his line of reasoning to Steven.