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Archive for the month “December, 2012”

Merry Christmas and Happy New Year

Merry Christmas and Happy New Year to all of my readers and followers.  I hope I can continue to post things worthy of reading over the next year!

As Advent winds down and as you get caught up in the hustle and bustle of the Christmas Season, do not forget that everything we do and have is because of the single greatest Christmas gift of all, which is the birth of the Christ Child.

While you celebrate the Twelve Days of Christmas, try and keep in mind all of the other celebrations and commemorations that will happen over that time aside from Christmas and New Year’s Day and their respective eves (here and here), including the Feast of Saint Stephen (12/26), the Feast of Saint John the Evangelist (12/27), the Feast of the Massacre of the Holy Innocents (12/27) (these three sometimes referred to as the Martyr’s Triduum), the Feast of Saint Thomas a Beckett (12/29), the Feast of the Circumcision of Our Lord (sometimes called Feast of the Holy Name) (1/1), Twelfth Night, and, of course, the Feast of the Epiphany, which celebrates the visit of the Magi (Wise Men) to the Christ Child and leads to the next Sunday’s celebrating of Jesus’ baptism.

This is truly a rich and profound season and I hope we can all get the most from it that God has to offer.


I Now [Cannot] Pronounce You Man and Wife

We have all seen the occasion, either in person or on television or the movies: the beautiful wedding with all the accoutrements.  The beautiful blushing bride standing next to her nervous, but happy, groom in the flower-adorned religious facility, flanked by the wedding party in traditional gowns and tuxedos, being lovingly viewed by the congregation gathered.  At the apex of the scene, between the bridge and groom, stands the clergyperson delivering customary and appropriate words of inspiration.  The entire process leads to the climactic moment when the bride and groom gaze into one another’s eyes and the clergyperson says those very familiar words: “by the power vested in me by the Commonwealth of Pennsylvania, I now pronounce you man and wife.”  Exuding joy and elation, the newly married couple shares a symbolic kiss and exits the religious facility in newly wedded bliss to enter a car, dragging tin cans in its wake, to announce their nuptials.

Amidst the joy and happiness, no one stops to wonder at what seems to be a very obvious question: what if the “power” was not “vested” in the clergyperson to marry the engaged couple?  One York County couple, however, did think to ask the question in the case of Heyer v. Hollerbush, Court of Common Pleas of York County, Pennsylvania No. 2007-SU-2132-Y08 (September 7, 2007).  In Heyer, the couple was married by a Universal Life Churchminister.  After about one year of marriage, Heyer filed a Motion for Declaratory Judgment against Hollerbush requesting the Court to declare the marriage invalid.  Heyer argued that the “power” to marry a couple was not “vested” in a Universal Life Church minister by theCommonwealth of Pennsylvania.  Pennsylvania vests the power on clergy to marry individuals under 23 Pa.C.S.A. Section 1503.  Section 1503(a)(6) states that “the following are authorized to solemnize marriage between persons that produce a marriage license issued under this part: A minister, priest or rabbi of any regularly established church or congregation.”  Heyer argued that a “minister” “ordained” in the Universal Life Church does not fit the criterion laid out under Section 1503(a)(6).

The Universal Life Church “ordains” interested individuals over the Internet or through the mail via a simple application.  No seminary, training, endorsements, or sponsorship is required; indeed, beyond a completed application there are no requirements for ordinands whatsoever.  Ordination is considered conferred upon review of the application by a human as the Church believes that people are born ordained and the completion/review of the application merely acknowledges this fact.  The Universal Life Church has no meeting places, no form of religious observance, no holy book or sacred traditions, and is entirely non-ecclesiastic.  Its creed consists of one undefined, unexplained and unexpanded upon sentence: “Do only that which is right.”  Given the preceding, the Court in Heyer ruled that a “minister” ordained in the Universal Life Church does not fit the requirements of Section 1503(a)(6).  Essentially, the Court reasoned that as such a minister does not have a “regularly established church or congregation,” and Section 1503(a)(6) therefore does not vest the power to marry on him or her.  As a result, the Court ruled that the couple in Heyerwere never actually married, declaring the marriage void ab initio (i.e.: from its inception).

Following the Heyer decision, the American Civil Liberties Union took on this issue by filing similar cases in the counties of Philadelphia (In Re: Ryan Allen Hancock and Melanie Bilenker Han, No. 080201774), Montgomery (In Re: Marriage of Peter Goldberger and Anna M. Durbin, No, 2008-21497), and Bucks (In Re: Marriage of Jason O’Neill and Jennifer R. O’Neill, No.: 2008-01620), requesting the Court to declare the validity of those marriages.  Similar to the Heyer matter, the cases in Philadelphia and Bucks Counties each involved a wedding presided over by a Universal Life Church minister.  In each of these cases, the Court disagreed with the Heyer Court and ruled that a Universal Live Churchminister does fit the criteria of Section 1503(a)(6).  The Court essentially ruled that the Court in Heyer narrowly and incorrectly interpreted Section 1503(a)(6); that a “regularly established church or congregation” does not exclude ministers without a congregation or physical church.  Further, the Court was persuaded by the fact that the Universal Life Church is a well-established religion recognized as such by its tax-exempt status.  Finally, it appears that the Court simply refused to involve itself in the affairs of religion, consistent with the tenor of the Free Exercise Clause of the First Amendment of the United States Constitution.  Ultimately in these cases the Court declared the couples validly married.

The marriage at issue in the case in Montgomery County was presided over by a Jesuit priest ordained by the Roman Catholic Church.  The Jesuit priest was an itinerant priest who had no congregation of his own and no assignment to any parish.  The Court again disagreed with the Court in Heyer using similar logic as found in the other two cases. However, it ought to be noted that reaching this decision regarding a Roman Catholic priest was much less groundbreaking as the previous cases because he was ordained by a well recognized and time-honored religion with extremely defined and established doctrines.  This case, however, is significant inasmuch as it lends support to the principle that a clergyperson does not need a physical church or congregation to formally and officially pronounce a couple married.

At this point, there is no standard interpretation and application of Section 1503(a)(6) across the Commonwealth of Pennsylvania as a whole.  Only the four counties mentioned above have addressed the interpretation and/or application of Section 1503(a)(6); the remaining counties have yet to make a ruling.  It is doubtful that there will be any uniformity on this issue until it is addressed by at least Superior Court, but it will likely require a definitive ruling from the Supreme Court of Pennsylvania.  Therefore, if one intends to be married, one should take consideration of whether the clergyperson presiding over the wedding does, indeed, have the power vested in him or her to do so in the county in which the wedding will occur.  Who knows, perhaps reviewing a clergyperson’s curriculum vitae will become a standard part of wedding planning for the foreseeable future. However, whether these married couples will live together until death parts them is another story altogether.

Originally published on June 5, 2009 in “Upon Further Review” and can be viewed here or on my website here.  This article was also reprinted in Volume 31 Issue No. 3 (October 2009) of Pennsylvania Family Lawyer.

Episcopalian In-fighting Spreads to Montgomery County Courthouse

In October 2008 a Montgomery County jury ruled in favor of former Episcopal Bishop of Pennsylvania, Charles E. Bennison, Jr., and against the Rev. David Moyer, Rector of the Episcopal Church of the Good Shepherd in Rosemont, Pennsylvania.

Fr. Moyer and Bp. Bennison have had long-standing theological differences with Fr. Moyer being a traditional Episcopalian and Bp. Bennison holding to extremely liberal theological positions.  Their dispute was more than a private one, but also affected their professional relationship.  For example, Fr. Moyer prevented the Bishop from visiting his Parish, as required by the Canons, because Fr. Moyer believed such action was necessary to defend the faith he swore to adhere to in his ordination vows, as he believed the Bishop would inevitably preach things outside the bounds of traditional Episcopal faith.

Their dispute came to a head in 2002 when Bp. Bennison deposed (i.e. defrocked) Fr. Moyer from the priesthood without a trial.  Bp. Bennison deposed Fr. Moyer under a church Canon allowing for removal of a priest based upon “abandonment of communion”.  This Canon does not provide for a church trial before removal.  It essentially permits a Bishop to summarily remove a priest if certain criterion are met that signify that the priest is no longer in communion with his bishop.  The essence of Fr. Moyer’s claim was that the Bishop’s removal of him as Rector and as a priest in the Episcopal Church was fraudulent when the Bishop used the “abandonment of communion” Canon as opposed to a more typical Canon such as “conduct unbecoming of clergy,” which requires a church trial before the removal of a priest. Fr. Moyer asserted that he never abandoned the communion of the church, and that the Bishop had a personal vendetta against him and was intent on removing him by any means possible. Fr. Moyer, finding no relief under Church Canons, in regard to his removal, brought a civil suit against the Bishop for the alleged fraud, among other things.

Along with the fraud claims, Fr. Moyer also attempted to turn his deposition from the priesthood by his ecclesiastical superior into a case of unlawful termination from his position by his employer, the Episcopal Church.  In so doing, the issue could be framed not as an interchurch squabble over obscure, perhaps medieval, Canons, but rather as an employment matter between an employee and employer and the work rules that govern their relationship. Work rules, handbooks, or work policies are generally viewed as terms of a person’s employment and violation of the same by an employer allows an employee to bring a claim against that employer for the said violation.  It could be argued that as a priest is merely an employee of a diocese (and, by extension, the national church), his bishop is his “boss” and the church Canons are analogous to work rules.  As a result, if one finds this sort of framing convincing, the dispute between Fr. Moyer and Bp. Bennison was not a dispute between a priest and his prelate over church Canons, but between an employee and his employer over work rules.

Despite attempting to frame this issue as an employment issue, the fact remains that the review of interchurch rules, policies, and decisions are protected by the free exercise clause of the First Amendment.  In order to ensure adequate protection under the First Amendment, while also allowing a Plaintiff such as Fr. Moyer an opportunity for redress, the fraud claim was established as the gateway claim.

Although Montgomery County Court Judge Joseph Smyth voiced his concern  that the lawsuit crossed the line from civil to church issues protected by the First Amendment, he permitted the case to proceed out of respect for the judge previously assigned to the case who had permitted the lawsuit to continue.  Although Fr. Moyer brought a variety of employment and civil claims against the Bishop in addition to the fraud claim, Judge Smyth, due to his First Amendment concerns, instructed the jury that if Fr. Moyer’s evidence did not meet the fraud burden of proof, all of his remaining claims must be dismissed.  Indeed, the Judge indicated that fraud had to “pervade” the Bishop’s decision-making process to depose Fr. Moyer in order for some or all of Fr. Moyer’s other claims to be successful.

After deliberation, the jury found that there was insufficient evidence that the Bishop committed fraud in his deposition of Fr. Moyer.  The jury’s decision can be interpreted as determining that the Bishop acted well within his rights under the Canons, despite the evidence presented by Fr. Moyer that the Bishop had a personal vendetta against him.

The conclusion to be reached from this lawsuit is that the First Amendment protects the actions taken within a religious body and the actions of the Bishop in deposing Fr. Moyer were not so egregious that the protections provided by the First Amendment would be insufficient.

This article was originally published in “Upon Further Review” and can be found here and on my website here.

Custody Orders Cannot Resolve Everything

A child custody case is often among the most divisive and personally visceral case one can litigate, from both the attorney’s and party’s point of view.

A custody order can go a long way to helping resolve many items of dispute, including where the child will live/sleep and when and how often.  A custody order also goes a long way to help estranged parents sort out how the holidays are to be distributed in a reasonable way.

Unfortunately, however, custody orders can only go so far.  A custody order cannot make the estranged parents suddenly get along.  It cannot make the other parent more reasonable or nicer or less contentious.  It certainly cannot make the other parent go beyond its terms.

Perhaps equally unfortunate is that a custody order – while potentially very expansive – cannot possibly include every single contingency and variable life presents.  Similarly, sometimes custody orders are left purposely vague (or with a range of options to be determined later) regarding certain issues to allow the parents to reasonably deal with them as they arise.  Often times, the parties agree to these more vague sections at a time when they are getting along only to have those sections quickly become points of contention and disagreement when the parties go through a rough patch.

When these sorts of issues crop up, one must realize that there is only so much a court, judge, custody order, and/or attorney can do.  A custody order can certainly become immovably ridged, but most people do not like the prospect of such rigidity as it does not allow for the inevitable variables that happen in life.  The fact is, custody orders are a good start but they will never be able to completely address and resolve all issues.

Ultimately, if you want your custody situation to improve, the relationship between the parents must improve to one where issues can be worked out reasonably through honest and open discussion.  I would suggest family counseling, or co-parenting classes, as an option to help this process.

The most important thing to remember is that a custody situation is about the child(ren) and not about you.  So, when you want to ask for something from the other parent, are you doing it for yourself or for the child(ren)?  When everything inside you wants to say “no” to that request, are you doing it out of anger, revenge, or spite toward the other parent?  Or do you honestly think the request is not appropriate for the child?  When you get told “no,” are you able to hear that answer, understand its rationale and/or try and work it out, despite your emotional response to lash out and wait for an opportunity to say “no” to the other parent out of spite and/or revenge?  Do you honestly think it would be better and/or more fun for your 12 year old son to stay home with you this Saturday night because it is “your weekend” even though his dad unexpectedly scored free tickets to a Phillies game from his boss today for that night and wants to take him?  Do you honestly think your daughter wants to be with you, her dad, on the night of her prom even though it is technically “your weekend”?  Do you honestly think spending time with you in the summer hanging around the house is better for your kids than an opportunity to go to Disney World with the other parent even though it may not be technically that person’s time according to the custody order?

Remember, even though you may win a “victory” by “getting more custody” or scoring some revenge on the other parent, you will ultimately lose the war because you will only accrue anger, spite, disappointment, annoyance, and ultimately a deteriorating relationship – not just with the other parent – but more importantly with the child(ren) whom you are allegedly trying to love in this process.  Children know and/or intuit far more than the average parent realizes; your son knows when the “no” to the Phillies game is more because you can’t stand his father than any other good reason.  The fact is, that man or woman you cannot stand is more than likely the mom or dad your child loves, and disrespecting and/or mistreating the person loved by your children will only serve to deteriorate the relationship you, yourself, have with your children.  Your children know – and can easily intuit – when they are used as pawns and it will only hurt you in the long run to use them as such.  Always remember that, absent extenuating circumstances, the other parent is as equally a parent as you are and loves your children just as much.

So, in sum, put your pride away and remember that what is best for your children is what is central, not you or the other parent.  Don’t make your custody situation about you or the other parent.  Your relationship and feelings toward the other parent are largely irrelevant.  Most of the issues that crop up are simple; figure it out and just do it.  It’s almost never as important in hindsight as you think it is now.  Keep in mind that the other person is “mom” or “dad” to your children and loved as such.  Respecting the other parent will go much further to earn your children’s love than the opposite.

Clinic Day on St. Nicholas Day!

Today is the first Thursday of the month, which is Clinic Day!  On first Thursdays I head down to the West Philadelphia Clinic in the late afternoon in order to volunteer as part of the ministry of the Christian Legal Clinics of Philadelphia.  You can learn more about the Clinic here.

It is also Saint Nicholas Day!  We all love Saint Nicholas – usually through his alter ego Santa Claus – but we cannot forget that as much as we love the “jolly old elf“, Nicholas was truly a great saint and defender of the Faith.   Nicholas was a bishop in the city of Myra (in modern day Turkey) and, in that role, shepherded many people to a love of Christ.

Although Nicholas is remembered for his great generosity, virtue, and love of children – and all of the stories and customs that have developed therefrom – perhaps his greatest contribution to the Faith and the world was not defending the innocent or leaving goodies in stockings but in protecting, defending, and standing firm for Christian orthodoxy.  Around the year A.D. 325 Nicholas attended the landmark Council of Nicaea with the world’s other Christian bishops.  At that council, Nicholas staunchly defended orthodox Christian teaching regarding christology (i.e.: who Jesus was) and the Holy Trinity (i.e.: the nature of the Godhead).  Indeed, Nicholas’ defense was so vigorous that the Emperor briefly imprisoned him.  Through divine intervention Nicholas was eventually released and, in part due to Nicholas’ intervention, the Faith was preserved.

So, as we think of Nicholas today and on Christmas, let’s also remember that Nicholas was more than a jolly man in a red suit, but was also a man of firm and true faith in Jesus and defender of the same.

Just as a note of humor to end this post, I did see a pretty humorous Facebook meme about Nicholas which I enjoyed, here it is:


Doing Year End Giving? Try C.L.C.P.!

Hello everyone:

As many of you know, I was recently appointed to the Board of Directors of the Christian Legal Clinics of Philadelphia. The Clinic has four locations in what many would call the less fortunate sections of the City of Philadelphia (S. Phila., N. Phila., W. Phila. and Caroll Park), each of which holds two clinics per month.

At the clinics, various people from the neighborhood – who are among our least fortunate in the area – come to receive legal advice and/or assistance on a pro bono or very low fee basis from the volunteer attorneys who serve at the clinics. I am one of the attorneys who volunteers at the clinics; I serve at the West Philadelphia clinic. You can learn more about us here: http://www.clcphila.org/

Although we try and do as much volunteer work as possible, there are always costs and expenses to pay, especially as we try to expand our reach. Funding for all we do is always an issue. We need funding help with office administration, court fees and costs, supplies and materials, and the general operation of the clinic. One of our goals is to establish a stipend fund to help finance contract attorneys to take more cases for those we serve, and perhaps attract more attorneys to serve.

So, all this to say, if you have some extra dollars for some year-end giving, please remember the Christian Legal Clinics of Philadelphia. We are truly in the trenches serving the poor and meeting them were they are in genuine Christian spirit.

We are currently trying to meet a matching grant for our dollars raised before the end of the year and we currently have a $12,000 short fall, so any help you can provide would go a long way.

If you feel led to give, feel free to contact me or Ted Oswald (ted.oswald@clcphila.org) who is the assistant to our Executive Director.

Thanks a lot and Merry Christmas and Happy New Year.


National Church v. Regional Diocese: Property Ownership by a Religious Institution

One of the oldest religions in the United States is at the forefront of the development of property and First Amendment law. In 1607, with the celebration of Holy Eucharist on a fallen log under a tent in Jamestown Virginia, the Episcopal Church found its beginning as the American branch of the worldwide Anglican Communion. Today, under the leadership of Rt. Rev. Robert Duncan, the Bishop of Pittsburgh, the seeds of the demise of the Episcopal Church as we know it have been planted as the synods of the Dioceses of Pittsburgh, PA, San Joaquin, CA, Quincy, IL, and Fort Worth, TX, and potentially more to follow, have voted themselves out of the Episcopal Church. The Episcopal Diocese of Pennsylvania (which consists of the Philadelphia five county area) is the fifth largest Diocese in the Episcopal Church. If a critical mass of the faithful formed a sufficiently significant voting bloc, the Diocese of Pennsylvania could be another diocese that departs from the Episcopal Church in 2009.

Over the last forty years, there has been a slowly growing movement of liberal theology within the Episcopal Church causing many faithful Episcopalians to lose faith in the National Church to adequately preach, maintain, and defend the historic Christian faith. As a result, Episcopalians have been leaving the Episcopal Church in greater numbers with each successive year, reaching a peak in 2008 with the departure of entire dioceses. The departure of dioceses from the National Church has raised as yet unanswered questions about the nature of the property ownership by a religious institution. Specifically, what entity owns church property, the National Church or the diocese?

Of course, property disputes among religious bodies and their members are hardly new. Over the last century and a half, Courts from around the country have generally used two overarching guidelines when ruling on such cases: (1) avoid involvement into inter-church politics as much as possible and (2) church property in a hierarchical church is owned by the diocese (or presbytery, etc). The distinctive issue that has arisen, in contrast to previous cases, is that now entire dioceses, as opposed to individual parishes/congregations, have attempted to leave the National Church.

Supporters of the National Church keeping the properties cite to the so-called Dennis Canon. The Dennis Canon (Title I.7.4 of the Episcopal Church canons), allegedly passed by the 66th General Convention of the Episcopal Church in 1979 states that “[a]ll 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.” Therefore, under the Dennis Canon, those seceding from the National Church must abandon their property, as it remains the property of the National Church. Supporters of the dioceses seceding from the National Church argue that the Dennis Canon was never actually passed by General Convention and none of the records surviving from the General Convention indicate that it ever passed. Suffice it to say, the court is loath to inject itself into this sort of interchurch squabble. Instead, when such issues are litigated in a civil court, the court will analyze the matter based upon property ownership and the corporate relationship between parish, diocese, and national church.

If the Diocese of Pennsylvania, at its next Diocesan Convention, votes to disassociate itself from the Episcopal Church, it would be very likely the National Church would bring an action against the Diocese for possession of diocesan property, including the real estate and all personal property owned by the diocese, such as the fixtures, prayer books, hymnals, and vestments, as well as the ejectment of parochial authorities, like rectors or perhaps even vestries. Supporters of the National Church would assert that the National Church is the top of the hierarchy for which all dioceses hold their property in trust and such a view is consistent with the spirit and tenor of existing case law. Those in favor of seceding from the National Church would assert that the National Church is an association that dioceses freely joined and from which can just as freely withdraw. For example, dioceses in the American South withdrew from the National Church along with the states in which they are situated when they seceded from the United States before the Civil War. These dioceses withdrew from the National Church without objection from the same, and were freely readmitted after the War. Furthermore, it is worth noting that properties within dioceses are virtually always deeded to the diocese itself and not the National Church.

2008 saw the departure of four dioceses from the Episcopal Church and 2009 could see further departures. A concerted movement among traditional Episcopalians in the Philadelphia area could lead to the introduction of legislation at the next Diocesan Convention to move the Dioceses out of the National Church. If successful, significant civil litigation by the Episcopal Church against those seceding is likely. At present the Episcopal Church is weighing its options regarding the withdrawn dioceses. Many expect protracted, expensive, wide spread, and large scale litigation. However, as more parishes and dioceses withdraw, litigation may prove to be prohibitively expensive as with each withdrawn parish or diocese is withdrawn tithers to the National Church causing it to lose more revenue with each successive withdrawal. Although lawyers may be interested to see how courts may rule in a matter such as this, perhaps the best, and most Christian, way forward would be an amicable separation allowing each side to go its separate ways taking its property along with it.

This article was originally published in Upon Further Review on January 9, 2009 and can be found here or on my website here.

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