Thursday, May 24, 2018


We all knew this day would come. It had to come to this once the terrible legal war began all those years ago. The fight between the two rival dioceses in South Carolina has made it all the way to the U.S. Supreme Court, the highest court in the land. It took more than five and a half years, longer than the Civil War. On June 7, the nine justices of the court in Washington D.C., are scheduled to meet and decide whether to accept the case from South Carolina. If so, we can expect to know their decision on Monday morning, June 11. 

The decision is a binary choice of enormous consequence. On one hand, if four of the nine justices agree to accept the appeal, the court will put a hearing of the case on its docket for the session of October 2018-June 2019. After the hearing, the court will issue a decision by majority vote of the justices. The decision will be final. On the other hand, if there is no agreement among four or more justices to accept the case on June 7, the petition for review is denied and the South Carolina Supreme Court ruling of August 2, 2017, stands permanently as the law. So, on the morning of June 11, listen for the distant sounds in Charleston. If it's the first hand, the metaphorical champagne corks will fly on Coming Street. If the result is the second hand, listen for the same sounds on Wentworth Street. A great deal rests on the Supreme Court conference of June 7. No one should underestimate the importance of what is arriving soon.

At this point, it is useful to review two topics: the background of the matter before SCOTUS, and the issues confronting the justices.

I must remind my readers that I am an ordinary non-attorney layman and these thoughts are my own. I do not speak for anyone else.

BACKGROUND, August 2, 2017 to May 22, 2018


On August 2, 2017, the SCSC issued a decision on the case. It had heard oral arguments on September 23, 2015. The Episcopal Church (TEC) and the church diocese, the Episcopal Church in South Carolina (TECSC) had appealed the circuit court decision of Feb. 3, 2015 to the state high court. The circuit court decision had gone entirely in favor of the independent diocese, the Diocese of South Carolina (DSC).

In summary, the SCSC recognized the TEC/TECSC trust control over 28 of the 36 parishes in question and Camp St. Christopher, the diocesan camp. It left 8 entities outside of the trust (6 parishes in DSC and 1 parish, St. Andrew's of Mt. Pleasant, in the Anglican Church in North America's Diocese of the Carolinas). In essence, this returned control over the 28 parishes to the Episcopal Church bishop. As for the question of ownership of the pre-schism diocese, the SCSC left that for eventual resolution in the federal court.

On May 8, 2018, TECSC lawyers filed a motion in circuit court for enactment of the SCSC decision. 


On September 1, 2017, DSC lawyers filed for rehearing in the SCSC. They asked that Justice Kaye Hearn's opinion be vacated (removed) and that she be recused from the case. If this should happen, the SCSC decision would fall to a 2-2 tie. That would have left the circuit court decision of Feb. 3, 2015, as the standing order. 

That was followed by two and a half months in which Hearn was the center of attention. DSC carried out a strong campaign to discredit her judicially on the grounds of premeditated bias while TECSC defended her robustly.

On Nov. 17, SCSC responded to DSC's Sept. 1 petitions. The justices denied a rehearing by a vote of 2-2 (Hearn abstained). They also unanimously rejected DSC's request for her recusal.

DSC's tactics against Hearn may well have backfired. In its decision of Nov. 17, Justices Toal and Kittredge, both of whom had sided with DSC on Aug. 2, chastised DSC for its harsh treatment of Hearn. The solid unification of the SCSC around one of its justices may have contributed to failure of DSC's request for rehearing.

The justices of the U.S. Supreme Court undoubtedly are well aware of the events in SC after the Aug. 2 decision. Justice Ruth Bader Ginsburg is well-known as a intrepid defender of equal rights for women. There are two other women on the court. One can only imagine their reaction to Hearn's treatment in SC. One should bear in mind that Hearn had not been the key of the Aug. 2 decision. The majority opinion was written by Justice Pleicones. The swing vote determining the outcome was Chief Justice Beatty. Yet, DSC's criticisms after Aug. 2 had focused on Hearn. I cannot imagine this would be lost on the women justices, RBG, Sotomayor, and Kagan.


On February 9, 2018, DSC filed a petition in the U.S. Supreme Court for a writ of certiorari, that is, for the court to accept the appeal of the SCSC decision of Aug. 2, 2017. 

The petition argued that Jones v. Wolf (1979) allowed a neutral principles approach to resolving property disputes between religious groups. DSC said the SCSC had followed a "hybrid" approach, partially deferring to the national church and partly following neutrality, and had erred by failing to adhere to a strict neutral principles path. It also said the Church had not set up a "legally cognizable" trust under SC law (Jones held that a national church could set up a trust without undue burden and impose it locally as long as it was in some "legally cognizable" form). Finally, DSC asked SCOTUS to clarify the relationship between a trust of a church and neutral principles, that is, exactly how courts were to treat trust claims of a national church in view of neutral principles. So, essentially, the point of DSC's petition was to get SCOTUS to revisit the Jones decision and clarify parameters of neutral principles as regarding churches. A strict application of neutral principles would work in favor of local churches.

DSC's petition was supported by two Amici Curiae (Friends of the Court) briefs. One came from a group of eighteen law professors specializing in First Amendment issues. The other was from the Falls Anglican Church, in Virginia, and the American Anglican Council. These basically reiterated the DSC petition calling for local rights.

On May 7, 2018, TEC/TECSC filed its response brief in SCOTUS  arguing primarily that the SCSC case had been adjudicated and decided entirely on state laws, particularly on corporations and property. Thus, there was no issue appropriate for the U.S. Supreme Court. There was no federal law involved and no constitutional issue. As for the trust, four of the five justices of SCSC had ruled that TEC had met the minimum burden of making a trust that was "legally cognizable." Thus, there was little disagreement in SC on the issue of the trust and its relation to neutral principles. TEC/TECSC asked SCOTUS to deny the appeal as essentially irrelevant or inappropriate.

May 15, 2018. DSC filed its rebuttal to TEC/TECSC's May 7 brief. It argued again that SCSC had not followed strict neutral principles and that it was necessary for SCOTUS to clear up the confusion around the country about how courts were to apply neutral principles. Once again, DSC clarified what it saw as the fundamental issue at stake:  Whether the Jones neutral approach allows courts to recognize a trust in favor of a national church even if that trust does not strictly adhere to state law. In other words, what does "legally cognizable" really mean?

It was interesting to note in its May 15 rebuttal that after all this time DSC continued to focus its criticism on Justice Hearn. In the paper, the lawyers named her, critically, a total of 25 times, more than all the other justices combined (Pleicones=8, Beatty=5, Kittredge=3, Toal=1). So, the not-so-subtle campaign against Hearn goes on, something I doubt the SCOTUS justices will miss.

June 7. The justices in conference will discuss another case involving churches, trusts, and neutral rights, the Eden Prairie Presbyterian (Minnesota) issue. We do not know whether the consideration of the two cases together was coincidental or planned. While on the surface, the MN and SC cases appear to be similar, they are really quite different in background. In the Eden matter, a local church left the presbytery and took the property with them. The local and appeals courts agreed with the local party (find the appeals court decision here ). The Minnesota supreme court refused to review the decision. The presbytery appeal to SCOTUS. In reading over the appeals court decision, it appears there were two major points that determined the outcome: the Presbyterian Book of Order was not clear enough about the terms of the trust, and the local church had joined the presbytery under an explicit provision that it could revise its articles of incorporation at will. Therefore, the presbytery's arguments that the church was hierarchical and had set up a legally cognizable trust carried little weight in court. 

In SCSC, a majority of justices had declared that TEC was hierarchical while four of the five justices had agreed that TEC had set up a legally cognizable trust (one of the four, Kittredge, went on to say that the local parishes had the right to revoke their accession to the trust). The court claimed it had followed neutral principles.


Here is what I see as the issues facing the SCOTUS justices:

DSC is asking the court to clarify neutral rights specifically on whether a national church has to adhere strictly to local laws in order to set up a trust. If SCOTUS should rule in that regard, DSC would win the fight.

TEC/TECSC is asking the court to dismiss the appeal on grounds that there is no federal or constitutional issue involved and therefore DSC's petititon is inappropriate.  

Further thoughts.
Everyone knows that the fight in SC is about homosexuality. The Episcopal Church side has granted full equality and rights for non-celibate homosexuals. It sees homosexual activity as morally neutral. The DSC side views homosexual behavior as sinful. It insists sexual relations must remain in the bounds of heterosexual marriage. It has institutionalized discrimination against non-celibate homosexual persons. The nine justices of the U.S. Supreme Court are well aware of this, no doubt.

What impact will this have on the court? There is no way to know. Of course, the court will insist it is all a matter of following the law. 

One should recall that it was this court (except Gorsuch who replaced Scalia) that ruled in favor of homosexual marriage in 2015. That was a 5-4 decision. One can only wonder if the 4 "no" votes will want to revisit the issue in another guise. It only takes 4 to accept an appeal. Of course, that means that in the subsequent decision, the 5 "yes" votes could reaffirm their support for equal rights for homosexuals. So, even though the legal issues at stake are not about homosexuality, the fight between the two sides really is about homosexuality. SCOTUS will be aware of this. I am not sure that 4 "no" votes would want to revisit this issue.

So, where does all of this leave us? No one knows. No one can know. Still, odds are that SCOTUS will deny DSC's petition. In my view, the stronger case is that the issue in SC was settled by state courts entirely under state laws. SCOTUS does not deal in state law unless it conflicts with federal law or impacts on the Constitution, which I do not see here.

One more thought. If SCOTUS should accept the appeal, the Church side should not panic. Accepting an appeal is not the same as agreeing with the appeal. It may well be that the court wants to clarify and strengthen something favorable to the national church. An eventual decision of the U.S. Supreme Court could be good for the national church side, just as it could be good for the independent side. We must not jump to conclusions if SCOTUS says yes on June 7.

We are all exhausted by this unseemly war. Let us pray that closure comes sooner rather than later. Above all, let us strive to be worthy of the name we bear.


7:00 p.m. Addendum.

A prayer from Bishop Mark Lawrence, May 24, 2018:

Almighty God, Judge and Redeemer of the world, send upon all courts of justice, and especially the Supreme Court of the United States and its justices, a spirit of wisdom, understanding, and discernment; grant that they may rightly and impartially interpret and administer the law; through him who shall come to be our Judge, your Son our Savior Jesus Christ. Amen.