Friday, March 27, 2015


On Mar. 24, lawyers of the Episcopal Church in South Carolina asked the South Carolina Supreme Court to take over the church case. On that day, they filed two court actions. One was a "Notice of Appeal" to the South Carolina Court of Appeals. This asked the appeals court to rule on Judge Goodstein's orders of February 3 and 23 that went completely against the Episcopal Church side. The second was a "Motion to Certify" with the South Carolina Supreme Court. This requested the transfer of the case from the state appeals court to the state supreme court. If the supreme court grants this request, the case will go directly to the highest court in the state for judgment. Since these were two formalities for hearing, the forms did not contain a brief, or explanation of the case. That will come later, probably as soon as a decision is made on where the case will be heard. We have a good idea of what the brief will say by reading the 182-page appeal of the Episcopal Church side to Judge Goodstein on Feb. 13. There is a good chance the state supreme court will respond favorably.

The SC Supreme Court has already been involved in the Episcopal Church issue twice. In September of 2009, it rendered the famous All Saints/Waccamaw ruling that found a local parish (All Saints, Pawleys Island) to be the owner of its property and not the diocese. The Diocese of South Carolina did not appeal this judgment to the US Supreme Court. The local Episcopal congregation from All Saints did file an appeal with the US Supreme Court, but the diocese refused to help and the congregation decided to make a settlement deal with the breakaway parish thus ending the appeal before the Supreme Court had a chance to respond. In fact, Bishop Lawrence and the Standing Committee are on record as having abandoned the Dennis Canon four months before the All Saints ruling when the Committee approved St. Andrew's of Mt. Pleasant's request to move several millions of dollars worth of property into a ironclad trust beyond the reach of the diocese and the Church. At that time, the diocese still officially acceded to the Constitution and Canons of the Episcopal Church, and specifically to the Dennis Canon. That canon required all property to be held in trust for the Episcopal Church and its diocese. By ignoring the Dennis Canon, the diocesan leadership signaled to all parishes that they too could ignore the Episcopal Church rules.

The All Saints decision was controversial. It was for one parish only. That parish had a long, unique, rather complicated history of property records. The Episcopal Church side still holds that the decision was limited to the parish and cannot be applied to the whole diocese. The anti-Episcopal Church side still holds that the court overruled the Dennis Canon in the entire state. At any rate, the decision was the last word. It is the only case in the US where a local parish won a final judgment against the Episcopal Church diocese.

The SC Supreme Court has already been involved in the case of the two warring dioceses. On Feb. 6, 2014, the independent diocese's lawyers asked the state supreme court to assume the ECSC appeal to the state appeals court. ECSC appealed Goodstein's ruling allowing DSC to keep secret the correspondence between Lawrence and Runyan. On April 4, 2014, the state supreme court responded and ordered the appeals case moved to itself. On May 7, 2014, the SC Supreme Court issued a ruling denying the Episcopal Church appeal. Thus, there is certainly plenty of precedence for the SC Supreme Court now to take the case directly.

What will be appealed is Goodstein's ruling of Feb. 3, 2015. In my layman's opinion, this ruling is a gross violation of the neutral principles rule. That rule strictly forbids a court from interfering in the internal workings of a religious institution. A judgment must be rendered entirely on local property laws with the two sides being treated "neutrally." Yet Goodstein's order is replete with remarks on the internal relationship between the Episcopal Church and the diocese; and in every instance finding in favor of the diocese. In fact, the order reads as if it were a brief of the anti-Episcopal Church lawyers. Considering the various court rulings around the country in the five breakaway cases, Goodstein's is the most extreme in favor of the secessionist diocese. She made the stunning judgments that the Episcopal Church was a congregational institution and that dioceses were always independent and self-governing entities. These can be easily refuted even by a simple survey of Church history. They are non-historical views. At any rate, I see these as over-the-top violations of the First Amendment

There is a reason the First Amendment is the first in the US Constitution. That is because the founding fathers regarded religious freedom to be the greatest of all liberties. It still is. For that reason, there is a good chance the US Supreme Court will take a case of the Episcopal Church, that is, one that has been settled in a state supreme court. The justices may also want to clear up boundaries between the deference and the neutral rights principles. In the past the Court has rendered both judgments but lower courts have had widely different interpretations of how to apply those principles. There is a need for a clear-cut definition of these guidelines.

A wild card in South Carolina is the role of the federal courts. The Fourth Circuit Court of Appeals is likely to send the case back down to the District Court in Charleston. If the Fourth directs the application of the Colorado River rule, the Episcopal Church side will have the advantage in the rehearing. In this case, Bishop vonRosenberg is suing for recognition as the one and only legal and legitimate bishop of the Episcopal diocese. He is charging trademark infringement, in other words, that Mark Lawrence is fraudulently claiming to be the Episcopal bishop. 

At this point it is impossible to predict how the state supreme court will act if and when it takes the Church case. Originally, I assumed they would simply rubber-stamp Goodstein's decision, but the more times I reread that decision, the more I am struck and dismayed by its non-historical rationales and judgments on Church structure. From my perspective, Goodstein's highly partial ruling is far removed from the mainstream of judicial thought on Episcopal Church cases around the country. Moreover, I see it as a clear-cut violation of the First Amendment and specifically the neutral principles rule. Since these are fundamental to the law in the state of South Carolina, surely the justices will at least consider Goodstein's highly contentious ruling with great seriousness.