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 | Articles

Same-Sex Marriage Is Still Wrong; And It’s Getting Wronger Every Day

Written by:
Wednesday, July 17th, 2013

The unexpectedly rapid civil acceptance of same-sex marriage in the West may lead one to imagine that the issue is somehow already settled. Whatever doubts one may have had, they have been swept away by the overwhelming flood of changed public opinion. Fait accompli. Traditional Christians must simply step aside now.

Such a judgment would be a mistake. Indeed, far from the matter being settled, at least form a Christian perspective it has hardly been engaged, despite claims to the contrary by proponents of same-sex marriage. What we have had instead is a bait-and-switch set of tactics, first seeking civil and religious recognition and affirmation somehow of same-sex attractions, then pressing for ordinations, then blessings of unions. What comes next? The question of a “slippery slope” is hardly a fallacy here, for in this case we have a historical track-record of legal advocacy and movement that stands as quite rational “evidence” for the slope’s existence.

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July 17 2013 | Articles

“Motivated Thinking” Or On Why The Dynamics Of Life Within The Episcopal Church So Closely Resemble Those Of The U.S. Congress

Written by:
Wednesday, June 5th, 2013

Polls indicate that people of all political persuasions are frustrated by the “gridlock” that now characterizes congressional debate and action. Many go on to ask how and why this sad state of affairs has come about. Recently, these questions presented themselves to me in a particularly powerful way when I read that unspecified complaints by unspecified persons had been registered under the new Title IV against nine Episcopal Bishops. I wondered on what basis such complaints possibly could have been made. My question became more pressing when later I learned, upon enquiry, that a similar complaint against me had been lodged with my diocese.

The answer to this question came to me in the form of a disturbing thought. Perhaps the complainants believe themselves to be in possession of a set of facts that to my mind are not facts at all. Perhaps their complaint is based upon a construal of reality that to their minds is quite accurate but to mine is utterly fanciful. This thought was followed by another prompted by an article in a recent edition of the New Yorker entitled “Unpopular Mandate.”

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June 05 2013 | Articles

Conciliation Accord: What It Means

Written by:
Saturday, March 9th, 2013

The recent Conciliation “Accord” announced between several bishops and their accusers over charges they violated canons in filing an amicus brief in Texas is a minor event. But it does fit well into a larger and disturbing pattern of TEC’s current leadership. That complaints were filed and charges brought against the bishops in the first place, such as to make this conciliation process necessary, represents gross misconduct on the part of the complainants in Fort Worth and of the Presiding Bishop’s office. It is misconduct not only according the canons as they now stand, but according to generally accepted ethical standards. That other TEC bishops and leaders have failed to protest this misconduct is a matter of shame for our church and for them.

The complaints and subsequent charges alleged that the bishops (and two ACI priests, about which later) violated canons by advising the Texas Supreme Court, in an Amicus brief, that the court should not wade into the property dispute between the departed and the continuing dioceses of Fort Worth in a way that demanded an adjudication of TEC’s Constitution. On the basis of the First Amendment and in conformance with our own TEC Canons (IV.19.2 makes it a violation to seek the secular court’s “interpretation of the constitution” and polity of our church), our brief asked that the court not engage in such interpretation, and gave reasons why not. If complaints were to be filed, they ought to have been filed against those of the continuing Fort Worth diocese and the PB’s office. They lodged the initial lawsuit and argued for the court’s engagement in interpreting our church’s constitution.

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March 09 2013 | Articles

Bishops and Civil Partnerships II: Still More Questions Than Answers

Written by:
Friday, January 18th, 2013

Two weeks since the House of Bishops’ decision on civil partnerships finally hit the headlines, many questions (such as those raised in my earlier article, written before media interest in the story) remain unanswered. Some of the processes are, however, beginning to become clearer, though these in turn often provide more questions than answers. What follows attempts to map what has happened, read between the lines to highlight key questions that remain, and point to some of the contextual factors that may have shaped the decision. A further article may explore some of the lessons that need to be learned from what has undoubtedly been a presentational disaster, irrespective of one’s views on the decision itself. That disaster does not bode well for the handling of this contentious issue by the church’s leadership in the coming year.

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January 18 2013 | Articles

Church of England Bishops and Civil Partnerships

Written by:
Wednesday, January 2nd, 2013

Tucked away within a wider press release just before Christmas it has been announced that at their December meeting the Church of England’s House of Bishops decided that “the House does not intend to issue a further pastoral statement on civil partnerships” and that “the requirements in the 2005 statement concerning the eligibility for ordination of those in civil partnerships whose relationships are consistent with the teaching of the Church of England apply equally in relation to the episcopate”. The announcement is already beginning to gain attention and speculation as to its significance including at Changing Attitude and Thinking Anglicans but its full import remains largely unconsidered. What follows seeks to set this decision in context and highlight important questions that remain unanswered and issues that need addressing.

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January 02 2013 | Articles

Open Letter to the Bishops of The Episcopal Church

Written by:
Tuesday, November 27th, 2012

This is a painful letter. It is painful because it concerns un-canonical (and perhaps even unlawful) actions on the part of our Presiding Bishop and her associates. These actions, detailed in the attached appendix and summarized in the bullet points below, have already undermined the good order and spiritual health of our church. We write to you our Bishops because of your responsibility for that good order. We write as Presbyters who have in one way or another faithfully served our church for over half a century. We pray that, despite the painful nature of the story we place before you, you will listen to what we have to say with a clear and open mind.

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November 27 2012 | Articles

South Carolina: A Communion Response

Written by:
Tuesday, November 20th, 2012

Yesterday Bishop Christopher Hill of Guildford, the chairman of the Church of England’s Council for Christian Unity, advised that church’s General Synod of developments in South Carolina:

On Saturday, a Special Diocesan Convention endorsed the South Carolina withdrawal from The Episcopal Church. The Bishop has stated that their position would be to remain within the Anglican Communion as an extra-provincial Diocese. The Episcopal Church on the other hand maintains that General Convention consent is necessary for any withdrawal. So the legal and indeed theological and ecclesiological position is extremely complicated. And it is absolutely not certain.

It has therefore not been possible to consider the consequences for our relationships at this immediate stage. And, in my view, any statement just at this point would be premature.

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November 20 2012 | Articles

Consumed By Litigation: TEC In South Carolina (Part Two)

Written by:
Wednesday, November 14th, 2012

In the first part of this article we addressed questions of good faith and canonical integrity arising from TEC’s actions in South Carolina. We concluded that those actions raise troubling questions about the good faith of many church leaders in their dealing with Bishop Lawrence, including the Presiding Bishop, the Disciplinary Board, other TEC bishops and some diocesan clergy. We also concluded that TEC’s position is canonically incoherent: either its actions in South Carolina are in open contempt of its own canons or TEC has undermined the legal basis of its position by acknowledging that the Diocese has indeed left.

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November 14 2012 | Articles

Consumed By Litigation: TEC In South Carolina

Written by:
Sunday, November 11th, 2012

It is becoming increasingly apparent as we witness developments unfolding in The Episcopal Church that secular litigation objectives are paramount, trumping other principles such as the fundamental norms of Christian conduct, the canonical integrity of the church, ancient standards of catholic ecclesiology and even the pastoral care of TEC’s own people. Proof of this startling proposition abounds, including the inexplicable disciplinary charges brought against nine bishops for joining ACI in filing an amicus brief asking the Texas courts to refrain from deciding complex questions of TEC polity and in submitting truthful affidavit testimony in Illinois. But nowhere is the ascendancy of litigation imperatives more apparent than in the actions TEC has taken concerning the Diocese of South Carolina.

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November 11 2012 | Articles

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