IN THE UNITED STATES OF AMERICA
IN THE COURT FOR THE TRIAL OF A BISHOP
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JAMES M. STANTON, BISHOP OF DALLAS, }
et al., }
PRESENTERS, }
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v. }
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THE RT. REV. WALTER C. RIGHTER, }
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RESPONDENT. }
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The undersigned attorney for Respondent, the Rt. Rev. Walter C. Righter, Retired Bishop of Iowa, hereby moves this Honorable Court for an Order striking all improper, immaterial and scandalous matter from the Presenters' "A Paper on Doctrine" and limiting the argument of the Church Attorney to the issue raised in the Presentment.
In support of this motion, the Respondent relies upon the pleadings and other papers heretofore filed in this matter, together with the Memorandum served and filed with this motion.
Respectfully submitted,
[signed]
MICHAEL P. REHILL
Chancellor, Diocese of Newark
Counsel for Respondent
The Rt. Rev. Walter C. Righter
Retired Bishop of Iowa
Dated: February 16, 1996
IN THE COURT FOR THE TRIAL OF A BISHOP
________________________________________
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JAMES M. STANTON, BISHOP OF DALLAS, }
et al., }
PRESENTERS, }
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v. }
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THE RT. REV. WALTER C. RIGHTER, }
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RESPONDENT. }
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Respectfully submitted,
MICHAEL I7. REHILL
Chancellor, Diocese of Newark
Counsel for Respondent
The Rt. Rev. Walter C. Righter
Retired Bishop of Iowa
Of Counsel and
WILLIAM C. BULLITT
Chancellor, Diocese of Pennsylvania
JOIN K. CANNON
Chancellor Emeritus, Diocese of Michigan
PAUL E. COONEY
Chancellor, Diocese of Washington, Retired
RICHARD J. HOSKINS
Chancellor, Diocese of Chicago
Dated: February 16,1996
"What does and does not constitute the doctrine of the Church, particularly as it is binding on what a bishop may or may not teach."
The "Paper" filed by Presenters is not responsive to the question posed by the Court. On the contrary, it is a blatant attempt to rewrite the Presentment and thereby deny the Respondent the opportunity to prepare a proper defense, and it is replete with immaterial, scandalous and offensive material calculated to inflame the public and prejudice the Court.
Accordingly, Respondent moves this Court to enter an Order striking the immaterial, improper, and scandalous material contained in the Presenters' "Paper" and limiting the argument of the Church Attorney to the allegations in the Presentment and the issue raised in the Brief in Support of the Presentment.2
This memorandum is primarily concerned with the Presenters' attempt to raise issues not set forth in the Presentment and not properly before this Court and the offensive, outrageous and scandalous Statements included therein, but, it should also be noted that to the extent the Presenters attempt to advance additional "sources" of their distorted concept of "Doctrine"3 or attempt to respond to the Brief of Respondent filed in May,4 such inclusions are also improper and should not be permitted.
PROCEDURAL HISTORY
On or about January 27, 1995, the Rt. Rev William C. Wantland, Bishop of Eau Clare, on behalf of himself and the other Presenters, filed the Presentment and Brief in Support of the Presentment in this case with the Presiding Bishop. Respondent's Answer to Presentment and Brief in Support of Answer to Presentment were filed with the Presiding Bishop on May 10, 1995.
By letter memorandum dated November 15, 1995, the Court wrote to Counsel and, inter alia, gave the Court's direction with respect to the Pretrial Conference scheduled for December 8, l995 in Hartford, Connecticut. That Order provided in pertinent part that on that date the Court would hear argument on any motions addressed to certain specified issues. The Court required that all such motions be "served in a manner that would assure their receipt ... no later than Monday morning, November 27."
In violation of the express provisions of the Court's November 15, 1995 Order, Presenters filed a "Motion to Bifurcate" which was not received by Counsel for Respondent until Monday, December 4, l995, only four days before the Pretrial Conference on December 8, 1995 in Hartford, Connecticut. As a result, Respondent was denied the opportunity to prepare and file a response to that motion. At the Pretrial Hearing at December 8, 1995, Respondent objected to the motion as untimely, but the Court allowed argument (and ultimately granted) the motion.
The issue properly before this Court is that set forth in the Presentment and the Brief in Support of Presentment (and as addressed in the Answer and Brief in Support of Answer of Bishop Righter): Whether the Doctrine of The Episcopal Church prohibits the ordination of a noncelibate homosexual person.
In Count 1 of the Presentment, Bishop Righter is charged with the alleged violation of Canon IV.1.1(2) ("holding and teaching publicly or privately, and advisedly, any doctrine contrary to that held by this Church") as follows:
"Respondent is hereby charged with violation of Canon IV.1.1(2) in that he is teaching publicly and advisedly that a practicing homosexual may properly be ordained to the diaconate or priesthood, and has rejected the doctrine of the Church that it is impermissible to ordain a practicing and/or advocating homosexual. He is therefore teaching a doctrine contrary to that held by this Church." Presentment, pp.6-7.
The alleged violation of Canon IV.1.1(2) is based upon the premise that it is "the doctrine of the Church that it is impermissible to ordain a practicing and/or advocating homosexual" Presentment, p 7, emphasis added), and Bishop Righter's alleged "public action and teaching" that "(a) A practicing homosexual can properly be ordained to the ministry of The Episcopal Church" and "(b) Respondent will not be bound by teaching statements of The Episcopal Church declaring it is impermissible to ordain practicing homosexuals." Presentment, p.6.5 (Emphasis added).
In their Brief in Support of the Presentment, the Presenters asserted that "'[D]octrine' is the teaching of the Church as determined by the formularies of the Church, including declarations by the House of Bishops," and then stated that "The Teaching or doctrine of The Episcopal Church ... is that ... it is not permissible to ordain a practicing homosexual." Brief, p7,
Presenters then went on to State,
"Should any Bishop preach or otherwise publicly proclaim that it is permissible and right to ordain practicing homosexuals, that teaching or doctrine would be directly contrary to the declared teaching of the Church, and would be a violation of Canon IV.1.1(2) prohibiting teaching contrary to the doctrine of the Church." Brief, p.7.
The Presenters' Motion to Bifurcate set forth the threshold issue before this Court as follows:
"This Court must initially determine whether Church doctrine prohibits the ordination of a non celibate practicing homosexual person." Motion, p. 1).Presenters then cited to their Brief in support of the Presentment, restating the issue:
"What specifically is the Doctrine of the Church concerning the ordination of non celibate homosexual persons?" (Motion, p,2).6
In their "Paper", Presenters improperly attempt to state two issues not raised in either the Presentment or the Brief of Presenters in Support thereof:
"Are standards of moral conduct a matter of doctrine in this Church?" (p. 1)
and
... [W]hether noncelibate homosexual practices conform to standards of sexual morality consistent with that doctrine. (p.3).
Neither of these issues was addressed in the Answer of Respondent or the Brief of Respondent in Support of the Answer. Neither of these issues was in any of the papers submitted pursuant to Canon to the members of the House of Bishops to determine if this case should proceed.7 Neither of the issues raised by the Presenters in their "Paper" is properly before this Court, and this Court should strike them as immaterial and improper and limit the argument of the Church Attorney to the issues in the Presentment.8
Moreover, in their "Paper" the Presenters have engaged in an outrageous and vicious appeal to stereotypical homophobic prejudice through the continual use of misrepresentations, miscitations, misquotations and intentionally misleading and inflammatory language.
For example, the Presenters have interchangeably used the terms "pederasty" (p.2),9 "uncontrolled desire" and "sexual violations" (p.3)10, and "pedophilia" (p.6)11 to describe the Presenters' grotesque concept of "homosexual practices". Presenters then argue that such conduct is immoral,
It is inconceivable that there is any Christian who would not join in condemning such conduct, but to accuse all non celibate gay and lesbian persons within the Episcopal Church (and particularly its homosexual Candidates for Holy Orders) with such conduct is irresponsible and intellectually dishonest.
It is respectfully submitted that all such improper and scandalous statements must likewise be stricken by this Court and the Church Attorney should be adinonished not to include any such language or references in the argument before this Court. Failure to do so would be to accuse every homosexual person with those crimes, and would bring shame and disgrace upon this Church.
Based upon the foregoing, it is respectfully urged that this Court enter an Order striking the immaterial, improper, and scandalous material contained in the Presenters' "Paper" and limiting the argument of the Church Attorney to the allegations in the Presentment and the issue raised in the Brief in Support of the Presentment.
Of Counsel and
On the Memorandum:
WILLIAM C. BULLITT
Chancellor, Diocese of Pennsylvania
JOHN K. CANNON
Chancellor Emeritus, Diocese of Michigan
PAUL E. COONEY
Chancellor, Diocese of Washington, Retired
Richard J. HOSKINS
Chancellor, Diocese of Chicago
Dated: February 16,1996
Respectfully submitted
MICHAEL F. REHILL
Chancellor; Diocese of Newark
Counsel for Respondent
The Rt. Rev. Walter C. Righter
Retired Bishop of Iowa
1By letter dated December 21, 1995, Bishop Jones advised counsel that the Court was going to enter the Order (which was entered on January 10, 1996). By letter to the Court dated December 26, 1995, counsel for Respondent implored the Court to reconsider its impending Order, which was perceived as "contrary to the Canons of our Church" (there being no Canonical provision for the filing of a second brief in support of the Presentment) and contrary to the most fundamental and basic concepts of Anglo-American jurisprudence and due process of law" (in that Respondent was to be denied any opportunity to respond). Moreover, in that letter Counsel for Respondent expressed serious concerns that Presenters would use the opportunity to file a "Paper" to attempt to amend the charges in the Presentment on the eve of trial and thereby deny the Respondent the opportunity to prepare a proper defense. Unfortunately, that is precisely what Presenters have sought to do in their "Paper on Doctrine."
2During the argument before the Court on December 8, 1995, counsel for Respondent argued that the Canons did not contemplate the filing of supplemental briefs on the issue of doctrine, suggesting the grave risk that the Presenters would use the opportunity to attempt to rewrite the Presentment. The "Paper" filed by Presenters demonstrates the perniciousness of briefing beyond what the Canons contemplate. Therefore, although the Paper filed by Respondent is responsive to the question posed by the Court, Respondent is prepared to have the Court set aside both Papers.
3Among such apparently newly discovered "sources" of the Presenters' "doctrine" is the Second Century Didache, which the Presenters consistently misrepresent and misquote. It is hardly an appropriate source for the Doctrine of The Episcopal Church. Consider the comments of Dr. Cyril C. Richardson in his introduction to Early Christian Fathers, Macmillan Publishing Co., Inc.., New York, 1970, at p. 161: "No document of the early church his proveently innocent tract which was discovers t in 1873... There is no unanimity among scholars about its exact date or purpose. It has appropriately been called the "spoiled child of criticism and it will probably need a good deal more spoiling before its riddle is finally solved." In addition, not satisfied with the frivolous argument that the Doctrine of this Church is to be found in resolutions of tale House of Bishops, Respondents now attempt to argue that the Doctrine of this Church is to be found in resolutions of the House of Bishops of the Church of England (Paper, p. 8), apparently based upon an incredible misunderstanding of a single sentence in the Preface to the 1789 Book of Common Prayer or an exaggeration of its significance. (Paper, p.9).
4The Presenters "Paper" is in part a reply to Respondent's Brief filed on May 10, 1995. For example, 'Respondent seeks to distinguish between Church doctrine and its moral and social teaching." Paper, p. 1.
5In Count 2 of the Presentment, Bishop Righter is charged with the alleged violation of Canon IV. 1.1(6) ("violation of ordination vows") as follows:
"Respondent is hereby charged with violation of Canon IV. 1.1(6) in that he ordained a practicing homosexual to the diaconate, knowing the ordinand to the a practicing homosexual, in violation of the teaching of the Church, and thus committing an act in violation of his ordination vows to 'conform to the Doctrine . . . of the . . . Church,' and in the face of the declaration of the House of Bishops that 'no Bishop shall confer Holy Orders in violation of the principle that 'In the case of an advocating and/or practicing homosexual, ordination is inadmissible.'" Presentment, p.7,
6Presenters' "Motion" then stated, "From the pleadings in this case, it would certainly seem that if the Court were to hold that Respondent's View is correct, i.e., that there was no doctrine that prohibited the ordination of a noncelibate homosexual person, then there would be no legal basis for finding Respondent guilty in this case." (Motion, p. 3).
7The issue of the "morality" of homosexuality (or "homosexual practices" ) was never raised in the Presentment or in the Brief in Support of the Presentment. However, the words "moral" and "morality" appear in the Presenter's 11 page "Paper" 23 times. Moreover, "immorality" is not a violation of Canon IV. 1 1(2) ("holding and teaching, publicly or privately, and advisedly, any doctrine contrary to that held by this Church") (now IV. 1. (c)). A Bishop may only be charged with "immorality" under Canon IV. 1. l(b) (formerly IV. 1. l(l). No such charge is set forth in the Presentment in this case.
8The final words of Presenters' "Paper" are as follows: "These challenges are not a matter for this Court. They are best left to General Convention to consider in its corporate capacity." P. 11, In this final statement at least, the Presenters are correct. The new issues now raised in their "Paper" are not a matter for this Court." They are not raised in the Presentment, and they are not before the Court in this case.
9The term "pederasty" means sexual relations between man and a boy, not between two consenting adults. The Presenters write, 'Thus the earliest, subapostolic writing, the Didache, or Teaching of the Twelve Apostles, begins by delineating "two ways, one of life and one of death (1.1), and immediately turns to sexual moral teaching against adultery, pederasty, and fornication. (2 2 5.1).' (P.2). The prohibition against "pederasty" as found in Didache 2:2 literally reads, 'do not be the corrupter of children/boys" (Robert Krafte trans., The Apostolic Fathers, Vol. 3, Barnabas and the Didache, p. 143) or "do not corrupt boys" (Cyril C. Richardson trans., Early Christian Fathers, p. 172). During the Second Century, the sexual exploitation of young boys by grown men was apparently commonplace, and it became a standard part of moral counsel in the early church to condemn such conduct.
10The Presenters cite to the story of Sodom and Gomorrah and what it calls "the parallel story about Gibeah in Judges 19" (p.3). The story of Sodom and Gomorrah is a now much discredited source of biblical homophobia, with most scholars recognizing that it is not about homosexuality (notwithstanding it being the source of the modern English term "sodomy"), but is actually an indictment of inhospitality to strangers. The later biblical references to Sodom and Gomorrah speak of the cities' injustice, pride, or unspecified sins, but say nothing of homosexuality. See Deut 29:10-28 Isa. 1:10; 3:9 Jer. 23:14 Ezek. 16:49 Amos 4:11; Romans 9:29, quoting Isa. 1:9; 2 Peter 2:6). When our Lord mentions the incident in Luke 10:10-12, it is in connection with persons who turn away those who come to them in peace. See also Matt. 10:14- 15. The story of Gibeah in Judges 19 is a brutal story of gang rape. It is cited by Presenters in such a way as to imply that anyone sympathetic to the ordination of non celibate homosexual persons is also in favor of gang rape. The Presenters, citing the Ten Commandments, next take out courageously after "uncontrolled desire" and "adultery and related sexual violations" (p.3), as though they have some relation to baptized Christians of the same sex living in faithful, committed relation with one another.
11Pedophilia means sexual relations between an adult, and a child. Presenters write, "the earliest church rule, the Didache, explicitly condemned both pedophiIia and homosexuality ..." (P 6) Contrary to the representation of the Presenters, while the Didache explicitly condemned pedophilia, it made no mention of 'hornosexuality." In fact, there was no term for homosexuality in Second Century Greek.