Wednesday, September 2, 2015


On Wednesday, September 23, the South Carolina Supreme Court will hold a hearing in the case of the two rival dioceses in the lower state.


10:30 a.m. on September 23, 2015. This time is fixed as the Court has already ruled that no extension will be granted.


The Courtroom of the South Carolina Supreme Court building at 1231 Gervais Street, Columbia, across from the state house. The hearing is open to the public on a first-come basis. Security personnel at the entrance will direct the seating of the hearing (there are two other unrelated hearings scheduled before the Church case, at 9:30 and 10:00).


The Episcopal Church diocese is appealing Judge Diane Goodstein's decision. On February 3, 2015, Goodstein issued her "Final Order" finding all in favor of the independent diocese and rejecting all the claims of the Church side. The Episcopal Church (TEC) and the Episcopal Church in South Carolina (ECSC) are the "Appellants." The independent diocese (at present legally the Diocese of South Carolina and The Protestant Episcopal Church in the Diocese of South Carolina) is the "Respondent."

Owing to the unusual size, complexity, and importance of this case, the Court has scheduled 50 minutes for the hearing. Most hearings are set at 30 minutes. Each side will be given 20 minutes to make its case before the bench of five justices, then 10 minutes for rebuttals. As in the U.S. Supreme Court, although each side will prepare a "presentation" to the Court, that time is usually taken up by the justices asking pointed questions of the presenting lawyer(s) standing before them. The judges will have already studied the briefs, papers, and history of the case beforehand. The hearing is their only opportunity to get the clarifications and explanations they want from the lawyers. The justices' questions are clues to their thinking and attitudes in the case. A hearing is not a trial. There is neither jury nor witnesses. The five justices alone "hear" the attorneys; and they alone will make the final decision. At some time after the hearing, the justices will discuss the matter in private and vote, then one will write the majority opinion. Six months is the typical time from a hearing to the issuance of the written order in the case. If so, we could expect a decision in early 2016 although a decision could be handed down at any time.

An audio recording of the hearing will be available on CD a couple of days after the hearing. It can be purchased for $20 from the office of the Clerk of the South Carolina Supreme Court.

The biographies of the five justices are available on the Court's website. Jean Hoefer Toal is Chief Justice and has been since 2000. She is 72 years old and a Roman Catholic. She wrote the All Saints/Waccamaw decision for the Court in 2009. It recognized the local parish as legal owner of its property rather than the diocese. The diocese, under Bishop Lawrence, did not appeal to the U.S. Supreme Court. This is the only final decision in the U.S. that ended on the side of the local party against the Church side. Chief Justice Toal is set to retire on Dec. 31, 2015. Three other justices concurred with Toal in the All Saints decision, but only one of them is still on the Court, Walter Beatty. The three new justices on the Court are: Costa Pleicones, a Greek Orthodox from Greenville; John Kittredge, a Presbyterian from Greenville; and Kaye Hearn. Hearn is an active member of St. Anne's Episcopal Church in Conway, the congregation formed by Episcopalian refugees from the local schismatic parish. In early 2013, her husband, an attorney and not a Church official, was inexplicably subpoenaed by the independent diocesan lawyers to give a deposition for the circuit court case.

What is the Purpose of the Hearing?

The purpose is to consider Circuit Court Judge Goodstein's Final Order of Feb. 3. The Church side is appealing that decision. It is asking the Court to overturn Goodstein's ruling. The opposition is defending that same decision before the Court. They want Goodstein's ruling to stand as is.

What is the Legal Background of the Hearing?

The hearing is the result of a series of legal events.

1. Feb. 3, 2015. Judge Diane Goodstein, of the state circuit court, in Dorchester County (St. George) issued "Final Order." This was the result of a two-year legal process. To begin, Alan Runyan and other lawyers filed a lawsuit in Goodstein's court on Jan. 4, 2013 against the Episcopal Church (and later the Episcopal Church in South Carolina). They claimed all the legal and property rights of the pre-schism Episcopal Diocese of South Carolina. In time, 36 individual parishes joined the suit on the side of the independent diocese. A trial was held in Goodstein's courtroom in July of 2014 involving numerous witnesses and a host of evidentiary documents. The judge claimed she followed only "neutrality" but some people felt she relied on the independent diocesan side. The two sides presented to Goodstein their lawyers' "orders" [requests for judgment] in December of 2014. Goodstein's decision, a 46-page Final Order was entirely in favor of the independent diocese. She ruled that the Episcopal Church is a congregational institution where power flows from the bottom to the top and that the diocese was a sovereign and independent entity free to leave the Episcopal Church at will. She awarded all rights and assets to the independent diocese. This was the most sweeping judgment of any court in the U.S. against the claims of the Episcopal Church. It is this Final Order that the Church lawyers are asking the state supreme court to overturn.

2. Feb. 13, 2015. Church lawyers asked Goodstein to reconsider her decision. They submitted to her a monumental 182-page rationale outlining a very long list of what they saw as errors and lapses in the Final Order.

3. At 11:55 a.m., Feb. 23, 2015, the independent diocesan lawyers submitted to Goodstein a response to the Church lawyers' request for reconsideration.

4. At 5:07 p.m., Feb. 23, 2015, Judge Goodstein issued a denial for reconsideration in a two-page order.

5. March 24, 2015, the Episcopal Church and the Episcopal Church in South Carolina asked the state supreme court to accept their appeal from the circuit court, thereby bypassing the state court of appeals.

6. April 15, 2015, the South Carolina Supreme Court agreed to accept the appeal from the circuit court. It also refused the request of the independent diocese to expedite the case and declared a fixed date for a hearing of Sept. 23, with no chance of delay. With this, the South Carolina Supreme Court became the first state supreme court in the nation to agree to hear a case involving the relationship of the national Episcopal Church and a local diocese. The Pennsylvania, Texas, and Illinois supreme courts had all refused to take similar cases and left the decision to the lower courts.

7. May 15, 2015, TEC and ECSC lawyers filed a 52-page brief with the state supreme court giving their reasons why Goodstein's Order should be vacated.

8. June 15, 2015, independent diocesan lawyers filed a 59-page brief with the state supreme court giving their reasons why Goodstein's decision should be upheld.

9. June 25, 2015, TEC and ECSC lawyers filed a 25-page reply brief in response to the independent diocesan lawyers' brief of June 15.

All of the above documents can be found on the Episcopal Church in South Carolina's website.

What are the Issues Involved?

The basic issue in this case is the legal relationship between the national Episcopal Church and its local dioceses, in this instance the Diocese of South Carolina. In a nutshell, the independent diocesan lawyers claim that the diocese is an independent and self-governing body with a distinct legal identity under state law. This fact entitles it to disassociate from the Episcopal Church and keep intact all its legal rights and assets. They see the Episcopal Church as a voluntary organization lacking the institutional right to rule over its dioceses (no supremacy clause) and to prevent any diocese from leaving the Church (no clause preventing secession).

On the other hand, Church lawyers argue that a diocese exists only in context of the Episcopal Church that is governed by a single Constitution and Canons. Except for local matters, all issues of the Church are settled by the General Convention and applicable to all dioceses equally. Once a diocese accedes to the Church's Constitution and Canons, as South Carolina did in 1789, it is subject to that document. It cannot disregard it. Moreover, all clergy in every diocese are required to make an ordination vow to obey the discipline of the Episcopal Church and, once made, are not free to disregard that vow.

In general, courts have followed two different approaches to cases involving religious institutions, deference and neutrality. Deference is deferring to the religious institution to settle its own disputes. Neutrality is adjudicating a property-related case treating two sides neutrally and equally. The First Amendment of the U.S. Constitution established the first and greatest right, freedom of religion: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." Following the principle of the separation of church and state, a court is not allowed to interfere in the internal working of a church. Churches must be free to manage themselves. However, courts have also said that cases may be adjudicated on "neutrality" if they concern only property disputes and the courts treat both sides neutrally. However, under the neutrality principle, no court can interfere in the internal working of a church.

South Carolina courts have followed the neutrality principle. The state supreme court justices claimed they followed it in their famous All Saints decision of 2009. Judge Goodstein claimed she followed it. The independent diocesan lawyers are now asking the state supreme court to agree that Goodstein followed neutrality properly while the Church lawyers are asking the court to discard her ruling as a breach of neutrality. They say she violated both the First Amendment and neutrality by making many improper judgments on the internal affairs of a church. It will be up to the state supreme court justices to decide whether Goodstein adhered to neutrality.

As I see it, the possible effective strategies of the two sides in the hearing are fairly clear. The independent diocesan lawyers must convince the justices that Goodstein's Order scrupulously adheres to neutral principles. They must follow the path of "strict construction," that is, holding the Episcopal Church to the letter of the law in its Constitution and Canons. On the other side, the Church lawyers have two possible tracks of argument. In one, they can press the charge that Goodstein went well beyond the allowable bounds of neutrality by repeatedly judging the internal working of the Episcopal Church. In the second, they can argue that this particular case is not appropriate for neutrality since it necessarily involves the court's probing into the structure of a religious institution. Under the First Amendment, the government is not allowed to infringe on freedom of religion. Therefore in this particular case, the Episcopal Church must be free to manage its own affairs. Since the state supreme court followed neutrality in its 2009All Saints decision, the Church lawyers must convince the justices that the present case is fundamentally different that that of 2009. In 2009, the issue was between the diocese and a parish and involved only a property. The present matter concerns the institutional nature of a national religious institution and involves far more than property. For the Church side to win on deference, its lawyers must present a compelling argument to differentiate the 2009 decision from the 2015 appeal.

It seems to me the second track is the strongest case the Church lawyers can make. They should ask that neutrality be replaced by deference in this case. And, the best evidences for this are found in the text of Goodstein's Order. See the post on this blog of Feb. 5, 2015, "Reflections on Judge Goodstein's 'Final Order' of Feb. 3, 2015." See also the post of Feb. 16, "ECSC's Lawyers Devastate Goodstein's Decision." I see Goodstein's judgment going well beyond the allowable bounds of neutrality to violate the First Amendment. There are too many instances of this in the Order to list here, but as an example the startling assertion that the Episcopal Church is a congregational institution (did not the word "episcopal" have any meaning?). Another is the mindboggling declaration that the Episcopal churches in the diocese were never members of the Episcopal Church (in what other church were they?). The rationales for these head-scratching charges were either thin or non-existent in the Order. It seems to me to be clear that the case of DCS v. TEC and ECSC cannot be adjudicated under neutral principles. It must be given deference because it requires judgments on the internal working of the Episcopal Church and it involves issues far beyond just real estate, both of which are not allowed under the neutrality principle. The First Amendment to the Constitution protects the Episcopal Church's right to govern itself.    

What are the Possible Decisions of the State Supreme Court?

While I am neither an attorney nor an authority on state courts, these are what I see as the likely outcomes:
1-The Court could validate Goodstein's Final Order.
2-The Court could find fault in one or more aspect of the Final Order and remand it to Goodstein with orders for reconsideration.
3-The Court could discard Goodstein's Final Order and consider the case de novo, or anew. The Church lawyers are asking for this. They assert the Order is so replete with errors of commission and omission that it can only be completely scrapped and replaced by a new decision of the state high court.

The Church lawyers have made a major point that Goodstein blatantly violated the First Amendment and the principle of neutrality. The burden will be on them to prove this. If they are successful, the Court may agree on starting anew. One should listen carefully to the questions the justices ask in the hearing to get a sense of their attitudes. What questions they ask and how they ask them will give us clues to where they are going in this case.

What about the Federal Court Case?

This is the wild card.

In the federal court case, Bishop vonRosenberg is asking the court to recognize him as the only legal bishop of the Episcopal Diocese of South Carolina.

Judge C. Weston Houck, of the U.S. District Court in Charleston has been directed by the U.S. Appeals Court to reconsider his case under a different principle that will work to the favor of the Church side. He has taken written arguments from both sides, but one can have no idea of when Houck will proceed with the case. He said earlier that the Episcopal Church is hierarchical and that Mark Lawrence had renounced his vows. He also said that the federal case is not dependent on the proceedings in the state supreme court. If the federal case is resolved first, one can only wonder what the effect will be on the state court. In the American constitutional system, federal courts are superior to state courts.

What Happens after the State Supreme Court Rules?

That depends on the ruling. If the justices remand the case to Judge Goodstein with directions for changes, the matter could drag on for years with no indication of the final outcome.

If the decision is simply to validate Goodstein's Order, the Episcopal Church and its diocese could appeal to the U.S. Supreme Court. I imagine this as a probability. It may well be that the high court would welcome this case as a way of clarifying the confusion that has resulted from deference and neutral principles. The First Amendment and separation of church and state are fundamental to American democracy.

If the Episcopal Church should prevail in the state supreme court, the independent diocese would have to decide whether to appeal to the U.S. Supreme Court. An appeal would cost more money, something that has been in apparent short supply lately. Of course if DSC loses and does not appeal, it would presumably have to turn over all rights, money, and property to the Episcopal Church diocese. The followers of Lawrence would have to start anew on their own without church buildings or any other property or assets. The Church diocese has already offered to give the 36 parishes their property in return for the legal rights of the diocese, but the independent leaders rejected the offer. By refusing a compromise settlement, Lawrence and his lawyers are gambling for it all in the supreme courts.

Whatever the decision, it will be a landmark in the history of the Episcopal Church and its dioceses. It will be the first state supreme court ruling on the relationship of Church and diocese. Numerous state supreme courts have ruled on the relationship of diocese and parish, almost all on the side of the diocese. Perhaps the most famous of these is the Georgia decision on Christ Church of Savannah, a complete diocesan victory over a schismatic parish.

Recommended Reading

James Dator and Nan Nunley, Many Parts, One Body; How the Episcopal Church Works (NY: Church Publishing, 2010. 192 p.)Based on a doctoral dissertation, this is the definitive work on the institutional structure of the Episcopal Church. Dator finds a unique arrangement, neither a confederation as in the Articles of Confederation, nor a federation as in the U.S. Constitution. He calls the structure a "unitary" system where the original nine states (dioceses), including South Carolina, composed and ratified on the spot in General Convention in 1789 a constitution and canons governing all of the nine. New dioceses would be admitted to this union only after they acceded to these documents. All decisions for the Church would be made as one body in the General Convention. This union implied permanence. 

Judge Donald S. Black, "Tentative and Proposed Statement of Decision," Superior Court of California, County of Fresno, May 5, 2014. Follows Dator. "Diocesan Conventions...may not conflict with the Church's Constitution and Canons," "...only the General Convention as a whole, or the Executive Council can speak for, act on behalf of, or is authorized to bind the Church." "Diocesan bishops are at all times subject to and bound by the Church's Constitution, Canons and Book of Common Prayer. None of these documents authorizes a diocesan Bishop to waive, to declare null and void, or modify or amend any of the Church's Constitution and Canons." Black's decision is the strongest yet in a state court on the rights of the Episcopal Church. (It is being appealed).

Some Final Thoughts

The schism in South Carolina occurred close to three years ago. Almost immediately the independent diocese went to court to sue the Episcopal Church. Litigation has filled the time since. The Church offered a compromise settlement in June. The people who sued first refused. There is no end in sight of these shameful lawsuits. Even if it were to be over tomorrow, the history of this once grand and great diocese is marred forever. The damage, cost, and destruction of all of this will be felt for a long time to come. The saddest part is that it was all avoidable. This schism was completely unnecessary. Nevertheless, the two sides are now mired in the quicksand and there is no apparent way out. The litigation will drag on for months, probably years, to come dragging everyone involved down.

The fundamental issue in dispute is the relative authority of the national Church and its dioceses. The question is, Where does sovereignty ultimately rest, in the national Church or in the local diocese? One side insists in the Church, the other in the local diocese. This issue is really a historical question. What does history tell us about the relationship of the Diocese of South Carolina to the national Church?

Space does not permit here a long discourse on this question. I have made remarks already in some posts, such as "A History Lesson," June 17, 2015. Suffice to say that my research has shown me that the Diocese of South Carolina saw itself only as part and parcel of the Episcopal Church (except for the temporary interlude of the Civil War), from the start in 1785 to the rise of the issue of homosexuality in the 1980's. Starting in 1982, under Bishops Allison then Salmon, the Diocese began to deliberately move away from the mainstream of the Episcopal Church. Farther and farther it went. Even as most of the conservative dioceses resolved to bite the bullet and stay in the national Church, the leaders of the Diocese of South Carolina plotted to leave the Church. According to the Standing Committee records, the final decision was made at least weeks before the officials carried out the schism in October of 2012. The rationale they gave for the schism was a supposed legal right to secede from the union. It was a misinterpretation of history and the Constitution and Canons of the Episcopal Church. Nevertheless, the majority of communicants bought it. Judge Goodstein bought it. Now, we will see if the five justices of the South Carolina Supreme Court will buy it.