Fort Worth bishop, legal team respond to misinformation regarding South Carolina decision


Bishop Scott Mayer, provisional bishop of the continuing diocese of Fort Worth has asked their legal team to address misinformation surrounding the recent property decision by the South Carolina Supreme Court and the on-going legal process over who is the rightful diocese in Fort Worth. He has issued this statement:

As you may know, last week the Supreme Court of South Carolina ruled against the former bishop and others attempting to take a diocese out of The Episcopal Church while claiming Episcopal Church property. And while we rejoice with the Episcopalians there, we also hold all involved in our prayers. We, better than most, understand that all litigation takes a toll on all involved.

Our legal team notes that South Carolina was one of the few states cited by the breakaways to justify their actions. But as one South Carolina justice wrote, South Carolina’s new ruling is “consistent with the majority of state court decisions.” The Episcopal Church has prevailed in case after case.

The Fort Worth Court of Appeals will decide our case based on the law and facts. Recently, however, there has been some misleading information put out about how the South Carolina ruling might affect our case here in Fort Worth. So I asked our legal team to address the misstated legal implications in a statement we could share with those interested. They sent the information below in response to my request. They have also filed a detailed filing with the Second Court of Appeals. I am sharing it with you knowing you will read it carefully. As always, please remember that speculation and public comment on litigation are discouraged.

Faithfully in Christ,

Scott Mayer
Provisional Bishop
Episcopal Diocese of Fort Worth


Legal Team Response

Churches, not courts, decide religious questions

Just like in our case, the South Carolina breakaways claimed to take an Episcopal diocese and congregations from The Episcopal Church. The South Carolina Supreme Court made clear: only The Episcopal Church can decide who controls an Episcopal diocese and congregations, even in a case about property. The Texas Supreme Court said the same thing. So did the U.S. Supreme Court.

This is critical. The breakaways in our case admit that the property they took is in trust for the Episcopal diocese and congregations. Only The Episcopal Church can decide who controls the Episcopal diocese and congregations. The breakaways must return the property to the only authorized representatives of the Episcopal diocese and congregations: the Episcopal Plaintiffs.

Property disputes don’t erase the First Amendment

The South Carolina court rejected the same arguments that the breakaways make in our Fort Worth case. As in South Carolina, the breakaways in our case claim that, if property is involved, a court can override the Church on who controls a diocese or congregation. South Carolina rejected that view and called it a “distorted” approach – just like the U.S. and Texas Supreme Courts rejected that view.

Why it matters

South Carolina law applies to South Carolina, not Texas, but the opinion is still noteworthy. In the past, breakaway groups often cited to outlier positions from South Carolina to justify taking property from their churches. Now they cannot. In the words of one South Carolina justice, the new ruling from South Carolina is “consistent with the majority of state court decisions.”

The First Amendment is clear: only the loyal Episcopalians authorized by The Episcopal Church can control the Episcopal diocese and congregations. And since, in our case, it is undisputed that the property taken by the breakaways is in trust for the Episcopal diocese and congregations, the property should be returned to those Episcopal entities without further inquiry.

Other issues

In a recent statement, the breakaways in our case downplayed the South Carolina ruling by pointing to side issues and misleading information. While our case should be resolved on the straightforward law above, we address those other bits of misinformation from the breakaways now:

Revocability. The breakaways in our case claim that South Carolina’s ruling does not matter because the trusts in South Carolina were irrevocable, while our trusts were purportedly revoked by the breakaways. That is false.

a. Trust for the Episcopal diocese and congregations. The breakaways in our case admit that the trust in favor of the Episcopal diocese and congregations has never been revoked. And the breakaways could not revoke it now if they wanted to – they have no role or authority in the Episcopal diocese or congregations.

b. Trusts in the Deeds.The breakaways in our case wholly ignore the fifty-five deeds reciting a trust for “the Protestant Episcopal Church.” The breakaways do not claim to be the Protestant Episcopal Church. Those trusts are irrevocable, and the parties who created them are long deceased.

c. Trust in the Dennis Canon. In our case, the diocese and every congregation agreed to hold the property in trust for the Church in exchange for the diocese’s creation and the transfer of over $100 million in property from another Episcopal diocese. Under controlling law, that agreement made the trust irrevocable. The breakaways want to ignore that law, but as the South Carolina court aptly warned: “What we cannot do is pick and choose which state laws to apply in order to justify a desired result.”

Corporations law. Citing corporations law is a red herring; the only corporation in our case is a mere trustee, holding the property in trust for the Episcopal diocese and congregations. Who controls the trustee is irrelevant. What matters is who controls the beneficiary of the trust – in other words, who controls the diocese and congregations entitled to the property.

Minimal burden. This is another red herring. The South Carolina court was right on this issue: courts should not burden a church’s constitution and canons by forcing them to incorporate the formalities of every state’s trust law. That was never what the U.S. Supreme Court intended in Jones v. Wolf. But Texas has already taken another view on this issue, and as required, we argued our case under the Texas view. Ultimately, the U.S. Supreme Court may decide which approach is correct, but we showed that the loyal Episcopalians are entitled to the property either way.

Full accession. The breakaways claim in our case that they “qualified” their promises to The Episcopal Church. But those promises were in writing: the Episcopal diocese and congregations “fully” and “unanimously” acceded to the Constitution and Canons of The Episcopal Church. There was no asterisk qualifying the accession.

The U.S. Constitution. We addressed this point above. Texas, South Carolina, and the U.S. Supreme Court all agree: only The Episcopal Church can decide who controls the Episcopal diocese and congregations, even in a case involving property. The First Amendment requires this result, and under our facts, that should resolve the case for the Episcopal Plaintiffs.

Quick links:

Bishop’s statement and legal team response with footnotes
Filing with the Second Court of Appeals


In that filing with Second Court of Appeals:

The central issue in our case is who may control the Episcopal Diocese of Fort Worth: the parties authorized by The Episcopal Church or the parties that broke away from The Episcopal Church. Because the breakaways have admitted that the property is held in trust for the Episcopal Diocese and its constituent congregations, the analysis comes down to which party may control those entities and thus use the property. The South Carolina opinions confirm what the Texas Supreme Court and the U.S. Supreme Court have already made clear: even under a neutral principles analysis, only The Episcopal Church can decide who controls and represents an Episcopal Diocese, even if limited deference on that ecclesiastical issue has an effect on the outcome of the property case. This is an important holding from South Carolina, because South Carolina had previously issued an outlier opinion often cited by breakaway groups to justify their taking of property.

In Diocese of South Carolina, the lead and concurring opinions explained that the dispute was essentially a religious one masquerading as a dispute over property and corporate control. These opinions recognized that the ultimate issue before the court was “which of two competing dioceses is the true Episcopal diocese in the lower half of South Carolina and thus has the right to control the property at issue.”

As reported by the Post & Courier, “The Diocese of South Carolina under the leadership of Bishop Mark Lawrence was granted an extension on Friday [August 4] for filing a request for a rehearing, giving lawyers 30 days to submit their petition with the S.C. Supreme Court. If granted the petition, attorneys will argue the case again, this time before a court whose members have partially changed.”

This post was last updated, 1:20 PM 8/10/2017.

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27 Responses to "Fort Worth bishop, legal team respond to misinformation regarding South Carolina decision"
  1. Speaking as a (now former) lawyer, yes the legal analysis reflects the present state of the law. But I mightily disagree with the Dennis Canon as I strongly believe in the integrity of the local congregation, which should have the right to decide with which larger body to affiliate, and be able to change that affiliation if it no longer suits their needs. I am a progressive Catholic Christian. How would my fellow progressives feel if, for example, a conservative national body took stances antithetical to its values such that it wants to leave? The people of the congregation, in most, but not all, cases, raised the money to build the building. It's theirs. This is not a liberal-conservative question!

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    • Unless it is a brand new church, no. My current parish ha been in its present building 100+ years. Those who contributed the funds to build it are long departed.

      If you want each congregation to be an independent unit, perhaps you should be a Baptist or a Congregationalist.

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  2. 1) I seriously doubt that in most cases the present congregation of a parish consists of most of the people who contributed the money to build the building. Maybe Rev. Lynch lives in a newer, expanding area, but I think most Episcopal Church buildings are older than the majority (in many cases, all) of their members.

    2) Regardless of (1), when you give money to a parish to build, maintain, or upgrade the building you are making a tax exempt charitable contribution, which means that you are explicitly NOT purchasing part ownership. The money and what it buys is the property of the parish, which is a part of The Episcopal Church.

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  3. What part of your education did not explain the difference between hierarchical and congregational systems of church organization? If you want a congregational structure, start your own non-denominational congregation. You can still use the BCP, but it won't be an Episcopal Church.
    If what you feel is a sense of the unfairness in all this I agree with you, but not for the reasons you cited. If I gave the money for a chalice and then decided I didn't like the sermons, could I take it with me (even in a congregationally organized congregation) when I went to the church down the street? Followers of Jesus should be able to get along with each other, even when we differ. Building parties and scheming to get around the rules shouldn't be thought necessary. Unfortunately, all attempts by humans to build a peaceable kingdom are doomed by the fact that they include more than one person. 😉

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    • TEC has the Dennis Canon for one reason: to protect money and power. That is so antithetical to the Christian Mission: to baptize and preach the Gospel, to build up the Kingdom of God. Christians taking other Christians to Court over money and property is most unseemly. TEC should have settled these cases long, long ago, instead of going into Court to force their way as the only way. The issue is not with what denominational body a congregation is affiliated, but rather whether that congregation is building up the Kingdom of God. If it is doing that, let it be, let them go, wish them well, and above all, stay friends! TEC's litigation tactics have been a public relations disaster. Litigation over church property alienates people from Church, alienates people from God. As denominations acquire more money and more power, they want more and more, and they move to protect it once acquired. No! We are called to lay up treasure in heaven, not on earth.

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      • "TEC should have settled." In South Carolina, the breakaway diocese initiated the lawsuit. Later, when the loyal diocese was appealing, the loyal diocese offered a settlement.

        "TEC has the Dennis Canon for one reason." The reason is the U.S. Supreme Court's decision in Jones v. Wolf which said that a hierarchical church could protect its structure (which is part of its theological identity) by adopting an explicit statement like the Dennis Canon.

        David wants a congregational church. The Episcopal Church is not congregational.

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  4. It keeps amazing me, that so many commenters either do not know that TEC did in fact offer a generous settlement letting the breakaway churches keep their parish properties - or don't find it important. The breakaway group sued TEC, not the other way around and TEC offered them their churches free and clear. Rev. Lynch, can you explain what is so specifically ugly and greedy about that? What indicates clutching at treasure on earth? Every one of those churches could be an ACNA parish with TEC's blessing if they -they- had not turned down the offer and kept their suit against TEC going.

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  5. Nobody is saying that you cannot leave, just you cannot take all the things that do not belong to you. It would be like me demanding to keep the computer provided by my work once I resigned and moved on.

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  6. The fact is that the "Dennis Canon," like many other laws, can be circumvented by donors who wish to do so. It requires a little legal work, including a separate "501(c)(3)" tax entity (usually a trust), The church gets to use the donated property, but does not own it. It is the system used historically by some Franciscans.

    While I agree with the changes in the Episcopal Church, I am confident that most of the donors who provided these properties would agree with the conservatives.

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  7. The Denis Canon was instituted, Rev DJL, ONLY when there was litigious questioning of what TEC believed, nearly the first 200 years, was OBVIOUS: we are an *episcopal* church! Congregations (parishes) have standing only WITHIN a bishop's diocese---not apart from it.

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  8. I am conservative in my religious beliefs,and my political opinions. The episcopal church was part of who I was for over thirty nine years. I did not come to it lightly, nor did I leave it lightly. I believe marriage is a sacrament between a man and a woman, and I think if a person is born with male genitalia then he is a male, and if a female is born with female genitalia then she is a female. we are what we are..not what we want to be...I would love to be five feet ten inches tall, have a small waistline and a long neck but I'm not. I'm short, with a bull neck and a barrel chest. That's just what I am. I believe in the sanctity of life including children conceived but not yet born. I think everyone is welcome in church I just don't believe all behavior is ok....Before making a decision to remain or leave I listened to every pod cast and read every interview I could find online by the former bishop Schori in order to make an informed decision...The deciding moment for me was made during a pod cast she made in which she stated the church was already looking at "new church models" I watched all of the "reimagining the church" presentations. One of the questions presented to the panel was " we are a conservative parish in the episcopal church. What provision have you made for us?" The panel looked at one another. And shrugged. The said that would fall under reconciliation. That word is used a lot in my former parish. As of yet no one has said what reconciliation looks like. What does that mean in reference to those who have a differing opinion ? I love and respect all my friends who decided to remain in the episcopal church. I will not talk church politics with them because I believe they have every right to their beliefs and their I have a right to mine. In my opinion, TEC has shifted its focus from worship of God the father, God the Son and God the Holy Spirit to a church less focused on worship to a church focused on mission. Mission has always been important in what it means to be Christian but mission never surplanted worship as it now does in TEC. I really have a hard time understanding how TEC can use the Nicine and Apostles Creeds if they really don't believe them. I don't mean to be disrespectful to anyone, I prayed a lot and cried many tears before deciding to leave TEC. I still would love to have someone in TEC address reconciliation and what that actually looks like in reference to those longstanding faithful communicants who made the hard decision to leave.

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    • It sounds like the ACNA church is a good fit for you, Ms. Ross, both on social issues and on credal theology. I kind of envy you that, since some of us aren't sure where we fit. I'm a social liberal and a theological conservative. I don't even know if our numbers are substantial or are just a fringe.

      But I don't take Schori's statements as a definition of TEC's stands. Or Spong's either. TEC hasn't removed, or reduced the Creeds to metaphoric "cherished parts of our heritage" or any lesser status than full standing as what we believe. TEC is still Trinitarian and Christ is still risen. That does not mean that I am sure TEC will stay that way. I'm not denying that a strong movement exists to move to a basic TEC position declaring them non-literal.

      But I think fear of that has been exaggerated, to convince many who left that TEC was wrong on more than just gay rights, that TEC has abandoned the faith. That makes me consider the possibility that a substantial number were unwilling to split the church over gay issues alone, and needed further inducements.

      I hate to see you think that "they don't really believe" in the Creeds, partly because I too used to think so, and discovered that it wasn't the case. Many of us, though we favor full equality for gays and women, are credal Christians. But whether our numbers are substantial or not, they are bound to be smaller than they were back when we could all worship together.

      In future, TEC may indeed go the way you think it has already gone. And maybe it would have anyway, even if this split had not reduced the number of theological traditionalists. I too love and respect people I disagree with, both in TEC, and in ACNA, and other denominations. I can even agree that TEC has the right to become a non-credal denomination, if that's what it really wants to do rather than keeping us all under a big tent. I'd leave TEC with good wishes and respect, but I'd leave. But it hasn't done so at this point.

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  9. Correct. I believe Justice Blackmun himself said of Jones V Wolf that if TEC thought Denis would solve its problems, it was wrong. Of course this is why we see different interpretations and judgments being rendered by courts. If it were so straightforward we would not a bare 3-2 decision v Goodstein; the final judgment in IL; and the Texas Supreme Court decision (not appeals court). Of course the small continuing diocese wants this to be changed, but unlike SC, this was a Supreme Court ruling qua ruling (cf Goodstein) and a fairly decisive one at that.

    TEC is trying to move itself into a new hierarchical mode in respect of property and discipline, and as the LA case shows, it will likely take yet further work -- including securing the agreement of Bishops and SCs throughout the land.

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  10. “While I agree with the changes in the Episcopal Church, I am confident that most of the donors who provided these properties would agree with the conservatives.”—Michael W. Murphy

    Well, Michael, that’s problematic, though, even for today’s so-called “conservatives.” One should be careful about projecting the past into the present.

    Should South Carolina conservatives use the argument that people of color ought not to be ordained deacons and priests, or consecrated bishops, because the original founders of St. Philip’s Charleston would have likely disapproved? Or, perhaps because the majority of St. Philip’s congregants in 1861 believed that in 1834 South Carolina “a black man has no rights which a white man is bound to respect"?

    On the other hand, perhaps most of the donors believed two hundred years ago that it’s okay to ordain and consecrate Afro-American (men) if the SC Episcopal congregations are kept “separate but equal,” so that black clergy only serve congregations of color…?

    …Not that Episcopalians in the North during this period were often any more progressive. Even some of the writings of one of my favorite nineteenth century High Church Bishops, John Henry Hopkins, gave religious cover for slavery. In 1851 Hopkins published “Slavery: Its Religious Sanction,” which treated slavery “as sinless and defended it on scriptural grounds…The pamphlet became one of the most frequently quoted tracts during the war years.” While he thought that abolishing slavery was desirable, like many Northerners Bishop Hopkins never treated “the peculiar institution” as the absolute evil that it was.

    Today, most Episcopalians, both South and North, would likely agree that slavery and racial prejudice are wrong. Eventually I believe that most of the schismatics in the various jurisdictions of the “Anglican Continuum” will also agree that any prejudice against gay people, trans-gendered individuals, etc., is wrong.

    Kurt Hill
    Brooklyn, NY

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  11. The planned giving officer in our diocese would tell donners that their gifts are a genuine act of faith precisely because an undesignated bequest means that the giver has no control over its use and thus the giver must believe that the Holy Spirit will guide the church into all truth and the gift will be used well in a church which may well be very diffent from the one which the donner knew in his or her lifetime.

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  12. Remember that the last name of the former presiding bishop is Jefferts Schori, not Schori. Not everyone knows this. On the other hand, some who opposed her relished calling her Schori out of meanness.

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    • Thank you for the correction on Katharine Jefferts Schori's name. I did not know "Schori" was being used in an insulting way. I hope it's clear that an insult wasn't my intent ; I tend to use the last only, when there's no hyphen. So I've learned something.

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  13. Thank you for your respectful comment Gail. I appreciate that. TEC speaks often about reconciliation in conversations regarding communicants who left. I want to know what that looks like. What does that mean. Is it a vague term they use or does it have more definition. I really would like to know. I understand reconciliation in terms of confession of a penitent but I don't know how TEC applies reconciliation to those who left following the schism. I look forward to your reply. Kindest regards.

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  14. Suzanne, thank you for the correction. I edited my story to reflect that court granted an extension to file a request for rehearing which is different from accepting a request for rehearing.

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  15. I'm so sorry ! Gwen Palmer...I addressed my reply to you but typed Gail rather than Gwen. Again, regards Gwen.

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    • I was wondering, thank you for clarifying. I know you were hoping for more info on how "reconciliation" would take form, and I meant to add apologies, that I'm not in any TEC position, on Reimagining TEC or other role, and couldn't provide much help. Time will tell.

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  16. My understanding is TEC does not follow a creedal view of belonging to the church but the belief is the worship binds us together, hence, the Book Of Common Prayer. Inside the Eucharist is the understanding of the healing found in the Sacrament of the Eucharist. There is an admonition in the offertory sentence regarding being in right relationship with each other:
    Rite I - If thou bring thy gift to the altar, and there rememberest that thy brother hath aught against thee, leave there thy gift before the altar, and go thy way; first be reconciled to thy brother, and then come and offer thy gift. Matthew 5:23,24

    Rite II - If you are offering your gift at the altar, and there remember that your brother has something against you, leave your gift there before the altar and go; first be reconciled to your brother, and then come and offer your gift. Matthew 5:23, 24

    Frankly, there have been times I have had to pass on the Eucharist due to my hardness of heart. But the reconciliation comes when we acknowledge the reality of not knowing where someone else is on their spiritual journey (and we all should avoid the temptation to judge others). I am not at liberty to judge you nor are you at liberty to judge me, that is God’s domain. I am at liberty as a broken child of God to kneel at the altar, perhaps beside you, and receive the forgiveness previously granted in the confession along with the substance of transformation and renewal wrapped as sacred mystery.

    Can we as brothers and sisters in Christ set down our need to be right and simply acknowledge our brokenness and need for God’s grace? If we could, for even a fraction of a second, see our siblings through the eyes of Jesus Christ, I believe our need to be right would melt into a puddle of pure love. Then I am not sure our sexual preference, our race, old or young, or any of the things which would divide would make any sense to us only that God loves each and every one of us.

    So in answer to your question Ms. Sandra Ross, I believe reconciliation is found in relationship as we continue to worship, minister and work as the Body of Christ. No appendages need be severed. If we who hold so much in common let differences divide us, then what hope is there for the Kingdom of God? If prayer cannot hold us together then maybe we should be divided by our need to judge others and to be “right” because certainly we have lost our way.

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  17. "My understanding is TEC does not follow a creedal view of belonging to the church but the belief is the worship binds us together, hence, the Book Of Common Prayer." The BCP which includes creeds, is confessional (surely in a common-sense if not technical use of that term), content-rich, massively descriptive of what the world looks like in light of the gospel, and yet we have bishop's and lay people and priests and deacons who continue fail to see the massive contradiction in saying things like this (we don't do theology, we just worship; we are not a confessional church; we don't have doctrines) and the actual content of the worship we offer to God and offer to the world. Sigh. No wonder an esteemed theologian has said (from memory here) there is a 'bogus view of comprehensiveness that has lain like a fog over the Anglican mind." I don't blame Margaret for repeating this trope, she is probably a very faithful laywoman, but I do shake my head in bewilderment, time and again, when I hear educated leaders, given the responsibility of teaching offices in the church, say this kind of stuff. A Bishop in New England said not so long ago "if you are wiling to *recite* the BCP then you belong." Well, I get that as dipping one's toe in the water as one's moves into the life of a congregation. But really, is that all to be said? is that the main thing to say? And *recite*? It's all depressing to me.

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  18. As time goes on we begin to see from blog discussions like this just what TEC has become over the past decades. There is a point where such minimalism and fog no longer attach themselves to the thicker claims of creeds and BCP both, but sit at some distance. I do not think there is much one can do about this. The level of self-satisfaction is high, or so it seems. With marriage, baptisms and even funerals halved, and ASA about 60, Bishops and Clergy will need to worry about survival, and this is a difficult place from which to launch renewal, catechism, and growth. I am not hopeful. Diversity excitement is a containing action and it thins out serious commitments to 'I would die for this' faith and practice. Five years isn't a long time away. If the ASA continues to drop and the church ages onward, the total ASA will drop below 500K by then. The one bright spot is the honesty with which TEC presently monitors its numbers. No one could say they were caught off guard. I wish you well William Paul. I am a third generation priest with a total of 7 ordained clergy in my extended family. This church has been my home. I have had to accept that it has become a different kind of body, and now one that is very susceptible to ongoing shrinking and collapse. It is a time for prayer and discernment. Blessings.

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    • I hadn't replied to Ms. Ayers, partly because I had trouble parsing the sentence you quoted, but mainly because a theological discussion could spin, sort of, off topic. It's relevant in that it's the cause of the split, but irrelevant in that the dispute on a courtroom level is whether a TEC diocese should have to forfeit its legal identity and properties because of its theology.

      The case is obviously not decided yet, but from a legal standpoint, it looks like TEC would have the *legal* right to officially deny the Trinity and hang a portrait of Darwin in the sanctuary if it wanted to. It would still have the legal right to its identity, and people would be free to think it was in line with truth, or think it apostate and leave but not to use that as a basis for taking the right to its name.

      Meanwhile the Creeds are still prominently posted as "What we believe." Because I had trouble understanding Ms. Ayers statement, I saw two possibilities: her statement could be compatible with a credal "What we believe," if she meant that we do affirm the Creed together, but that TEC does not enforce a particular interpretation for "belonging," and willingness to come together with our differing interpretations is where TECs strength lies. If she meant that the main thing we believe in as a group, is that we're a group praying together, I'm not sure how that fits with the "What we believe" statement. I also wondered if a word was left out in her post, as in

      ".. the belief is *(that) the worship binds us together, hence, the Book Of Common Prayer."

      Again, I completely support TEC's right to define itself, as fully credal, as fully non-transcendent Darwinist, as a Big Tent where it's a matter of personal conscience, or as anything that its members strongly choose. If it became nothing more than a social service organization, I think it would still have the right to its identity. And I'd go be something else. Numbers might reflect a problem, but numbers should not drive its theology. The best concept of what is Truth should drive it and let the numbers rise or fall, but the concept of Truth it decides on may simply not be my concept.

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