Thursday, August 21, 2014

What's going on in Mennonite Church USA?

                                    Brief History

To understand the current situation one needs to understand the past. The branch colloquially called the "Old Mennonites", technically known as the Mennonite Church, has existed for many years, the largest group being in Pennsylvania. It was fairly conservative, and many did not believe in voting or getting involved with politics in any form. It had a top-down, authoritarian structure, led by Bishops.

The General Conference branch, which I grew up in, was started in the Midwest in 1860, and included many immigrants from Russia. It was always more liberal, believed strongly in higher education, and had an organization in which the individual congregations had autonomy. Both the OM's and the GC's were subdivided into "area conferences", which were groupings of congregations in the different parts of the country. Decisions not made at the congregational level tended to be made at the level of the area conferences.

In 1989 discussions started between the OM's and the GC's exploring the possibility of a merger. A vote was taken in favor of merging in 1995, and the merger was finally consummated in 2002.

                         The Homosexuality Issue

A support group for gay Mennonites was formed in the 1970's, called Brethern and Mennonite Council for   Lesbian, Gay. Transgender, and Bisexual Interests, or BMC for short. At the Mennonite Church General Assembly in 1983, BMC was approved to have a booth. However, after a few hours this booth was dismantled by denominational "leaders", and BMC has not been allowed to have a booth at any general assembly since. Thus, a chance to open a meaningful dialogue was lost.

In the '80's and '90's, several attempts were made by both the OM's and the GC's to form committees to study the homosexuality issue and come back with recommendations. The results of these studies were always recommendations to be more inclusive and welcoming to gays, and to recommend better dialogue with those favoring a more inclusive approach. In every case, these reports were shelved and the hard work done by the committees was ignored. In fact, delegate bodies of both conferences, in 1986 for the GC's and 1987 for the OM's, approved anti-gay resolutions stating that all same-sex sexually intimate unions are sinful.

In February of 2000, an open letter appeared in Mennonite Weekly Review (now called Mennonite World Review), signed by close to 1,000 Mennonite church members, including many pastors, calling for a more inclusive approach. This came on the heels of the joint general assembly of the two conferences the year before, when the GC's voted to approve the merger, but enough OM's opposed it that the required percentage of approval was not reached.

This should have alerted the powers that be that all was not right with the merger. But the leaders were willfully blind to the realities, and were determined to plunge ahead. One of the main issues that the OM's were leery about was that the proposed new conference's anti-gay stand was not strong enough, so the leaders set about to make them happy. As a result, the 2001 Membership guidelines were promulgated, discussing homosexuality as if it was the main issue worthy of concern, and containing strong anti-gay language. Enough OM's then approved the merger and the merger was then finalized early in 2002. This started a pattern which has continued to this day, the pattern being that large OM churches continually threaten to leave the denomination if their way is not followed, and the spineless Executive Board, fearful of losing the financial support of these large, and usually prosperous, congregations, simply caves in to the threats.

                      Post-Merger Problems

Many of us felt at the time that this merger made no sense, and sprung from a "bigger is always better" mentality, rather than from any legitimate reasons. History since has proved us right in this view.

There has been ongoing controversy over the homosexuality issue, and, sporadically, over the abortion issue. There have been a number of sorry episodes in which dedicated pastors, seeking only to serve their communities with love as Christ has asked us to do, have faced sanctions from the Mennonite higher-ups for officiating at same-gender weddings. Credentials have been removed for some, while for others credentials have remained in place after much "discernment". Congregations have, I believe in every case, supported their pastors, so that at times whole congregations have been removed from membership in the denomination, or have voluntarily left because of the ongoing harassment from the Executive Board.

                  The Theda Good Controversy

To officiate at same-gender weddings is one thing, but to be openly gay as a pastor is another. This issue came to the fore late last year when Mountain States Conference, one of the area conferences from the GC branch of the church, decided to ordain Theda Good, an openly gay pastor, for a Denver church. This has sparked considerable debate and controversy which continues to this day.

On January 24th a letter signed by 150 Mennonite pastors and others pushed for changes in Mennonite policies regarding gays. The inspiration for this was an article by Ron Adams, pastor of a Wisconsin church, which told the poignant story of his brother, who was born gay and ultimately committed suicide after his rejection by the church.

The Executive Director of the MC USA church, Ervin Stutzman, responded with a February 4th letter, acknowledging the Jan. 24th letter and advocating for more dialogue between the two factions. The Executive Board then met later in Feb. and issued their usual gutless pronouncements. They called for "the creation of a listening task force to review the process by which Mountain States Mennonite Conference decided to license Theda Good, and to examine the ways these actions interface with the existing membership guidelines and policy documents" of MC USA.

The Executive Board again met in June, and issued another statement which condemned the licensing of Theda Good, even though the Executive Board does not, and never has had, authority over the licensing decisions of the individual area conferences. Shying completely away from providing any leadership, the Executive Board stated that any changes in Mennonite doctrine would have to be done by the general assembly, which won't be until next year.

                    The Current State of the Debate

A watershed event occurred last month with the publication of the July 21st issue of the "Mennonite World Review". For the first time, a Mennonite of national prominence spoke out clearly against the heavy-handed and illegal actions of the Executive Board. Editor Paul Schrag wrote a strong editorial in which he says clearly that the actions of the Executive Board were wrong.

Schrag talks about the "two competing visions" of MC USA, one with a strong central authority, the other emphasizing local freedom. Schrag then states that "the best path for MC USA today would be to preserve the local freedom that already exists and not expand central authority."

Schrag goes on to label the Executive Board's actions as wrong, stating that "area conferences alone have the right to license and ordain pastors". He says that "Good's licensing deserves the same respect as any other." Further, he states that "People who have observed the pastor's gifts and established a relationship over time should make the decision. A distant national board should not pass judgment."

And finally, he concludes that "Variation is a fact of life in the church. and it is accepted in all these cases but one. The Executive Board should lead a conversation about how the church can deal respectfully with differences rather than rebuking one." Strong stuff, indeed.

In that same issue of the MWR, several letters to the editor made very strong cases for either tolerance or separation. Don and Elsie Steelberg, a retired pastor and his wife from Wichita, Kansas, wrote that "A revision of the Confession of Faith is necessary. These issues need to be decided at a national assembly so that we can choose whether to part ways." Ruth Linscheid, from North Newton, Kansas, writes that "the institutional Mennonite church is in crisis. This brokenness will continue to grow until MC USA lets go of its fear, prejudice and heterosexual superiority." Floyd M. Mast states that "I am glad that Luther, Calvin, Simons and other were willing to be separated." He goes on to say that "Perhaps it is time to allow for separation in peace and friendship. Both sides take their beliefs seriously, so why pressure them to bend."

Perhaps the most thought-provoking letter was provided by Don Nofziger, of Milford, Indiana. Nofziger says that the GC's and OM's "decided to live together without getting married". What he means is they attempted a merger without resolving their very different forms of organization, with the OM's having a "top-down, bishop-led" system, while the GC was "congregational". He concludes that "Perhaps we need to let area conferences be responsible for themselves....This is not according to the original vision, nor is it the ideal. But it may be the best we can do presently."

What would make Nofziger's vision work is that few of the area conferences from the old congregations ever merged with each other. (I can find evidence of only one such instance--the Central Plains Conference was formed from the GC Northern District Conference and the OM Iowa-Nebraska Conference.) So, it might be workable for the area conferences to be allowed to have their proper autonomy. But, will the Executive Board, dominated as it is by OM's, ever stand for that? Not likely.

The stark difference between the two branches is seen in the different responses of the area conferences in my area of Ohio, both of which had annual meetings this summer. The GC Central District unanimously passed a resolution supporting Mountain States in its licensing of Theda Good, and calling for an approach that is "relational rather than punitive". By sharp contrast, the OM Ohio Conference had a resolution calling for the removal of Mountain States Conference from membership. The vote was 163-101 in favor, a 61.7% vote but still short of the two-thirds needed. So adamant were the anti-gay forces, that the delegates had to vote three times on different measures regarding the licensing of Ms. Good.

                    What about the future?

There seems no hope at all for MC USA to continue as a viable organization. The delegates can vote next summer to separate and go their separate ways. Absent that, we will have years and years of conflict and gradual erosion of support as one congregation after another gets fed up and leaves.

This perhaps might be a cause for alarm, but retired pastor Lynn Miller, who lives in the Bluffton, Ohio area, made a cogent comment when Executive Director Ervin Stutzman appeared at a town hall meeting in Bluffton in June. When Stutzman said that "The homosexuality issue is threatening to tear the church apart", Lynn immediately piped up and said, "No, not the church, the institution." The point is that God's church is alive and well, regardless of whether the institutional church is functioning or not.

On the issue of people or congregations threatening to leave, Lynn has made a very cogent online comment. He states: "From my own pastoral experience I have come to believe that anyone who threatens to leave, be it a person, congregation, or entire conference, has already emotionally left. The best response is to say, 'Thank you for leaving, we have wasted way too much time responding to your threats, and we need to get back to the business of being the people of God doing the work of Jesus as we understand it. Goodbye, and God bless you.'”

When one embraces this perspective, the importance of the institutional church fades into insignificance.

            So, what does the "Confession of Faith" actually say about homosexuality?

What is so odd about this whole controversy is that the Confession of faith never even mentions homosexuality! Both sides of the controversy assume that it does, and that the Confession needs to be changed if the conference is to go in a different direction.

 The sentence in question is the one which says that "We believe that God intends marriage to be a convenant between one man and one woman for life". The footnote to the sentence refers to two passages: Mark 10:9, and 1 Corinthians 7:10-11. Neither of those passages says anything about homosexuality! The thrust of those passages is that marriage should be for life, and that remarriage after divorce is forbidden. Then if you look at the commentary for that section of the Confession, you will see that the commentary also says nothing about homosexuality.

Monday, August 18, 2014

What about the Ferguson Curfew?

Two days ago, after the Missouri governor announced the midnight curfew to go into effect that night in the town of Ferguson, Missouri, MSNBC had a panel of commentators who made the ridiculous allegation that the protesters' "First Amendment rights ended at midnight". They all thought it was just horrible.

We are talking about a host, three commentators there with him, and then another one at a remote location on the west coast. All agreed with the sentiment expressed above.

This is one of the stupidest things I have ever heard on a national network. Anybody with half a brain knows that there are all kinds of limitations on free speech; just think of libel laws, laws against blackmail and extortion, laws against making terroristic threats, disturbing the peace, and on and on. The First Amendment has never meant that we have the right to say anything we want, at any time we want, at any place we want, in any manner we want, at any decibel level we want, and so on.

I could go on with numerous examples, but the point has been made. The point of the First Amendment is that anybody with a political message has a right to get that message out. The protesters in Ferguson can protest all they want from 5 AM to midnight. If their point has not been made in those 19 hours, perhaps they should go home and reconsider their approach to make it more effective.

Thursday, August 7, 2014

Rand Paul's Lies

Let me say at the outset that there is a lot I like about Rand Paul, because I have a strong libertarian streak in me. But what I admire most in a public figure is not his or her views, but his or her's honesty, personal character, and personal integrity. This is why the public figure I admire most from my lifetime is Barry Goldwater.

Two troubling lies have emerged from Rand Paul's public statements recently. Several weeks ago, he told Casey Hunt of NBC News that he never opposed the provision in the Civil rights law banning private businesses from discriminating. His exact quote was "I never said before" that he opposed this.Well, Rachel Maddow of MSNBC showed numerous clips of Rand Paul saying exactly that, that he did oppose this provision, because it infringed on private property rights.

Then just this week, Paul says that he never opposed aid to Israel. Well, CNN came up with a clip where he said quite clearly that he did.

Why in the world does a politician lie when his statements can be so easily disproved? This will remain a mystery to me, I suppose. Where is the personal integrity these days?

Monday, August 4, 2014

"The Impeachment and Trial of Andrew Johnson", by Michael Les Benedict

This is a scholarly monograph, containing 360 footnotes. The author studied contemporary newspaper accounts and private correspondence from the participants to put together this detailed account of the efforts to impeach Andrew Johnson and remove him from office.

The author's mission with this book is to correct what he perceives as history's overly unkind treatment of the radical Republicans who sought to remove Johnson from office. He states that the modern view is that he Republican efforts were well-meaning, and, if anything, did not go far enough. His sense of this trend is that the studies of reconstruction in general are now more kind to the Republicans, but that the Johnson impeachment is still tainted by the original harsh view, an alleged inaccuracy which Benedict seeks to correct.

Even taking this account at face value, the author's conclusions are not supported by the facts, by the law, or by good political sense.

Dealing with the latter first, we note that the original impeachment effort, in December of 1867, failed miserably, with the final vote being 108-57 against impeachment. However, by February 24, 1868, the situation had changed so dramatically the the House voted overwhelmingly to impeach the resident. And what had changed during the interim two-month period? The answer is that Johnson had attempted to remove Secretary of War Edwin Stanton from office, in apparent violation of the Tenure in Office Act.

From a political standpoint, this impeachment effort seems absurd, with an election coming up later that same year. Why not simply vote Johnson out of office in the upcoming election?

From a legal standpoint, the action was quite dubious because it is doubtful that the Tenure in Office Act even applied to Johnson's firing of Stanton. The Act only covered cabinet members "for the term of the president who appointed them and one month thereafter". Since Stanton had been appointed by Lincoln, not by Johnson, Johnson's defenders argued that he was not covered by the Act.

The Republicans responded that the "term" within the meaning of the act was still in effect, since Lincoln's second term was 1865-1869. They also argued that by allowing Stanton to continue as Secretary of War, Johnson had in effect "reappointed" him, and was therefore covered by the Act.

Resolution of this issue was difficult, because the Tenure in Office Act was a product of a compromise crafted in a Senate-House conference committee to reconcile the differences between the two bodies, and nobody was quite sure what the intent of the final outcome was with regard to the Johnson cabinet. Benedict admits that the only historian to delve into this issue intensively has concluded that the Democrats were right on this issue.

Another argument used by the Republicans was that by submitting the proposed removal of Stanton to the Senate for its approval, in conformity with the requirements of the Tenure in Office Act, the president had admitted that the Act applied to his cabinet, and he should therefore be estopped from later denying the Act's validity. This argument is laughably weak, and yet Benedict comes back to it over and over again to support his weak position on the impeachment question.

The fact is that I can act in conformity with a law, even while retaining a belief that the law does not apply. There is indeed a legal concept of estoppel, but it has no application to this case. Estoppel applies to the situation in which one party has materially changed his position to his detriment, in reliance on my actions, and this reliance is reasonable; in that situation I may then be estopped from changing my position.

A further augment is that even if the Tenure in Office Act did apply to Stanton, the president has the right to remove him if he had an honest belief that the law itself was unconstitutional, and the courts would then decide the question in due course. Of course, the argument that the Act was not constitutional is quite strong, since part of the president's executive function is to remove people working under him. Yes, the Senate is constitutionally empowered to advise and consent to nominations to cabinet posts, but the constitution says nothing about any right of the Senate to block removals.

Surely, then, the Act must be considered unconstitutional as an infringement upon the separation of powers contemplated by the constitution.  However, the Republican position was that the president had no right to disobey a law merely because h believes it to be unconstitional. In the words of Iowa congressman James F. Wilson, "If an officeholder believes he cannot in good faith execute the law as his duty requires, he must resign."

We have seen that the impeachment grounds were weak, whether they be viewed from a political standpoint, a factual standpoint, or a legal standpoint. But the most interesting issue is the larger one regarding he meaning of the impeachment clause in the constitution. This issue arises because of the vagueness of that clause, which provides for removal from office for "treason, bribery, or other high crimes and misdemeanors". Since the meaning of the phrase "high crimes and misdemeanors" is obscure there is obviously room for varying interpretations.

The narrow view of this clause is that a president can only be removed for an indictable offense. The broader view is that espoused by congressman Gearld Ford in 1970 when he sought to impeach Justice Douglas, Ford's view being that "an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history".

Benedict reveals his bias on the issue when he states: "Those who espoused the narrow view had an extremely difficult task in sustaining it, because in fact it was a novel argument, running counter to precedent, the overwhelming weight of American legal authority, and logic."

What Benedict is espousing is that the president shall serve at the pleasure of the Senate. In other words, a conversion from our system to a parliamentary system, with impeachment being comparable to a "no confidence" vote in the British system. This is obviously contrary to logic and common sense. It would mean the legislative branch would be supreme, rather than one of the separate but equal branches contemplated by the constitution.

The precedent Benedict referred to is indeed there, but it does not support his position. Supreme Court Justice Samuel Chase was impeached by the House in 1804 for his conduct in trying cases under the Sedition Act. The clear pattern of misconduct resulted in eight Articles of Impeachment voted by the House against Chase.

As described in Irving Brant's book, "Impeachment, Trials and Errors", Chase was a bad judge, whose conduct was "unfair, partial, biased, and oppressive". The issue, then, was clearly framed: are bias or incompetence proper grounds for impeachment and removal from office, or must a crime be proven? The Senate in the end recognized that the constititution did not make honest error impeachable, and Chase was acquitted on every count. One vote was unanimous, and the worst vote for chase was 18-16 for conviction, still well short of the two-thirds vote required for removal from office.

The Senate in the Chase case recognized in the end that removal from office for political reasons was not proper. Why, then, should it not be even more clear in he case of President Johnson? Chase had clearly violated proper judicial ethics by his abandoning neutrality and in effect serving as both prosecutor and judge, and doing so for strictly political reasons. President Johnson's conduct falls far short of that, and he was well within traditional prerogatives in wanting cabinet members of his own choosing.

The seven Republicans who voted against removal of Johnson from office have been hailed as heroes, since every one of their votes was needed to avoid conviction. Six of the seven filed formal opinions and all felt that impeachment should only result from "positive violations of the law". Benedict holds a different view, and attempts to poke holes in their stated reasons for voting against conviction, and to strip them of their hero status.

Benedict's problem is that he cannot see the forest for the trees. He nitpicks about various tings Johnson did to thwart the will of Congress concerning reconstruction, but he fails to see the bigger picture. As pointed out by Brant, the constitutional convention specifically considered whether to include "maladministration" as a ground for impeachment; Madison objected to that proposal, stating that "so vague a term will be equivalent to a tenure during the pleasure of the Senate". The attempt was then abandoned. In light of that, Benedict's view of the role of impeachment in our system makes little sense.

Nevertheless, Benedict's book is valuable if the reader is simply seeking to learn more about what exactly happened regarding the impeachment of Andrew Johnson, which was my purpose when I read this book.

If the reader is seeking guidance on the proper role of impeachment in our system, I recommend "Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson", by former Chief Justice William Rehnquist. Rehnquist gives a lot of historical background, and arrives at the view of impeachment advocated in this review.

Rehnquist looks at the results of the Richard Nixon impeachment in 1974, and concludes that the result was entirely consistent with the view of the seven Republican Senators who voted against the removal of Andrew Johnson. The House Judiciary Committee considered five articles of impeachment against Nixon; however, only three of them were adopted, while the other two were rejected as not representing clear and serious abuses of presidential power. The Senate vote against the removal of President Clinton in 1999 is also in line with this standard.

Thursday, July 17, 2014

The Wichita "Summer of Mercy" in 1991

In cleaning out some old files recently, I came across a file of newspaper clippings I saved from the summer of 1991, in which Operation Rescue invaded Wichita and subjected us to daily and never-ending protests against a local abortion clinic.

What jumps out at me now, 23 years later, is the story of three judges who became involved in this mess, one judge from each of the three levels of the judiciary. The first is Pat Kelly, a federal judge who was a robust, activist judge who cared deeply about the law. He issued an injunction regulating what the protesters could and couldn't do, and then it was his thankless task to try to enforce the injunction. The task was thankless because the demonstrators would be released and go right back and break the law again, and Judge Kelly became totally frustrated, as you might expect in this situation.

A Municipal Court judge, Harold Flaigle, was equally frustrated, as the run-of-the-mill city trespassing cases wound up in his court. He had hundreds of such cases every day during the height of the protests, and, by his own admission, was completely depressed at the futility of it all. He would release people, who would then be right back in his court within days.

The oddest example is state district court judge Paul Clark, who up until this point had been a highly respected judge with a distinguished record. But for some reason he completely fell of the deep end on the abortion protest issue. Twice Judge Clark was reversed by the Supreme Court when he made rulings that just totally ignored the law. Once he ruled that life begins at conception and that a protester was therefore legally justified in breaking the law. In another case, an appeal from Municipal Court in which the defendant was a repeat offender and therefore subject to enhanced penalties, Judge Clark inexplicably ruled that the city ordinance mandating enhanced penalties was unconstitutional, without giving any reasons explaining how he reached this conclusion.

In 1993 a protester named Shelley Shannon shot the abortion doctor, and she was charged with attempted murder. Judge Clark, as head of the Criminal Department, assigned himself the case, as had been his pattern with cases involving abortion. When his rulings in the pre-trial phase of the case became so bizarre and indefensible as to make the court system a laughingstock, the overall head judge, Michael Corrigan, took the case away from him and handled the trial himself. It took the jury only an hour to convict the defendant.

Actually the reason for Clark's aberrant behavior can be guessed at. It was well known that Clark was angling for a position on the Court of Appeals or the Supreme Court during the early '90's. It so happened that at the time we had a Democratic Governor, and one who was pro-life. It seems clear that Clark, a Democrat, felt he could finagle the appointment he desired with his bizarre rulings.

Also found in my files was a letter I had published in the December, 1992, issue of the ABA Journal, expressing strong support for a recent action by the ABA House of Delegates in taking a stand in favor of abortion rights. A fellow Kansas attorney, Philip Ridenour, weighed in on the other side of the issue in the February, 1993, issue of the ABA Journal. Mr. Ridenour's position was that abortion, like capital punishment and the decriminalization of marijuana, is not a legal issue, but rather a "moral, religious, and cultural issue", and the ABA therefore had no business commenting on it.

Since Mr. Ridenour was kind enough to send me a copy of his letter, I am moved to offer this belated response:

It is obvious from the discussion of the three judges above that abortion is very much a legal issue. Legalities were involved here, in that the law of the land was being blatantly disregarded and women's constitutional rights were not being adequately protected from the harassment of these out-of-state protesters. Lawyers have special insights into this sort of situation.

The same holds for the marijuana issue. We lawyers have seen what our stupid drug laws are doing to the judicial system, flooding it with cases which do not belong in the court system, and flooding our prisons with people who don't belong there.

The same holds for the capital punishment issue. We lawyers have special insight into what these cases do to the legal system. We know why it is that it costs more to execute someone than it does to hold that person in prison for the rest of his life. We lawyers have special insight into all the vagaries of capital punishment: the disparate treatment of minorities, the differences in how cases are prosecuted from one jurisdiction to the next, the problem with publicity-seeking DA's trying to make a name for themselves, etc.

So, while I understand Mr. Ridenour's point, his point is not well-taken because it does not stand up to scrutiny.

Wednesday, July 9, 2014

Yankee Fan Andrew Robert Rector files Ten Million Dollar Lawsuit?

What in the world has this country come to? This clown is caught on camera in a very public event, a Major League baseball game, sleeping in the stands. And he claims he has somehow been damaged by this?

This ridiculous lawsuit will be thrown out of court faster than you can say "Jack Robinson". What it says about our litigious culture speaks volumes. We have become a society obsessed with rights, and with no sense of responsibilities. Our descent into the ash heap of history remains intact.

Wednesday, July 2, 2014

The Supreme Court Decision on Recess Appointments

The media has reported this decision as a loss for Obama, in a 9-0 vote. However, when one looks at the actual decision, it is apparent that it was a split decision, 5-4, with the liberals prevailing. At issue is a poorly-written and ambiguous provision of the constitution which gives the president the power “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

The majority opinion, endorsed by the court's four liberals plus the middle-of-the-road Justice Kennedy, held that the appointments at issue were illegal because they did not fall within the definition of "recess", since the Senate met for a pro forma session every three days to ostensibly stay in business, and thus thwart the president's power to make recess appointments. This seems wrong on the face of it, since it is exalting "form over substance", something we lawyers are taught not to do. The Senate was, as a practical matter, not in session during the time of the appointments, even though it claimed to be.

The real issue here is the interpretation of the word "happen". The dispute is whether the vacancy has to arise during the recess, or whether the president can fill a vacancy which arose before the recess, but continued during the recess. The four dissenters (actually concurring justices), felt that the vacancy has to arise during the recess. The majority pointed out, correctly, that this holding would contradict two centuries of actual practice, and would thus be an extreme overreaching of judicial power.