Affidavit Of Mark McCall

Written by:
Saturday, September 14th, 2013

The entire affidavit can be read in pdf format here.

In April I submitted an affidavit in federal court in South Carolina on behalf of Bishop Mark Lawrence.  It was one of several affidavits submitted by the Diocese of South Carolina in response to litigation filed against Bishop Lawrence by parties supporting the position of the Episcopal Church in South Carolina.  My affidavit included work on issues relating to TEC polity that I have done over the last three years but had not previously published.  This affidavit has been part of the public record for several months.  ACI is now posting it online.

My affidavit contains a detailed analysis of the legal structure and history of TEC.  The following paragraphs provide an overview of the analysis:

26. In the remainder of my affidavit I will examine the account of TEC’s structure and history presented by Plaintiff’s expert witness, Robert Bruce Mullin. This account is profoundly mistaken and contains numerous errors, misrepresentations and failures to understand relevant legal concepts.  But before turning to the detailed analysis it will be useful to present an overview of what that testimony is trying to accomplish.

27. As I will show below, Mullin concedes as he must that TEC’s governing document, its Constitution, contains no explicit language giving any central body hierarchical supremacy over its member dioceses in recognizable legal language. He claims instead that such supremacy was an “assumption” that is only “reflected,” not stated, in the church Constitution. Indeed, he goes so far as to claim that while “explicit language of supremacy was necessary” for other churches, for TEC “language of supremacy in the Constitution was unnecessary and, indeed, inappropriate.”

28. To justify why TEC alone does not need the standard legal language readily found elsewhere Mullin develops an alternative theory of TEC’s structure and legal history that he characterizes at the outset of his testimony as “an extended historical and theological analysis of the development of the Church’s hierarchical structure from its earliest days to the present.”

29. In this section I will consider carefully what Mullin admits about the lack of standard legal language expressing hierarchy. In the next section I will show that his alternative theory cannot withstand scrutiny.

30. Although I challenge in this affidavit Mullin’s interpretations of TEC’s legal history, constitution and canons and 200 years of related documents, it is important to reiterate that Mullin characterizes his testimony as “an extended historical and theological analysis.” When his testimony is understood as he himself describes it, it is clear that the Plaintiff is asking the Court to go far beyond anything the First Amendment permits. Courts cannot sift through 200 years of ecclesiastical history pursuing “assumptions” that were allegedly made in the 1780s and never stated explicitly but were only “reflected” in an ambiguous historical record. Courts cannot constitutionally enter a theological thicket that requires “immersion in doctrinal issues or extensive inquiry into church polity.” Maryland and Va. Churches v. Sharpsburg Church, 396 U.S. 367, 370, n. 4 (1970).

The entire affidavit can be read in pdf format here.

September 14 2013 02:23 pm | Articles