Monday, September 21, 2015


The stage is set for the South Carolina Supreme Court to conduct its hearing of the appeal of Judge Goodstein's decision, on Wednesday at 10:30 a.m. Anyone with access to a computer can watch it live streamed ( ). Here are some suggestions I, a non-lawyer, offer for viewing the hearing:

1. The 5 justices are the most important people in the room. They, and they alone, will decide this case. Watch each one for "body language" as well as questions. They are likely to spend most of the time asking questions of the presenting lawyers. Who will ask the most, the least? Will they ask more of the appellants (TEC/ECSC) or the respondents (DSC)? How will they interact with the lawyers, inquisitive, supportive, combative, or indifferent? Will they try to bring out more information from the lawyers or argue against their assertions? Is it possible to tell if each justice is more partial to one side or the other?

2. Topics. Look for certain key topics in this case, how they are raised, presented, argued, and questioned by the justices:

---Goodstein's decision (Final Order of Feb. 3, 2015). TEC/ECSC is appealing this decision and asking the court to discard it and act de novo, or anew. If the justices give much attention to the decision it might indicate favoritism or leaning toward revision. If they speak little or not at all of it, that might indicate they will toss it out. The lawyers and justices are bound to speak of the decision some because after all this is an appeal of that decision, but amount, content, tone, and attitude of the talk may indicate position regarding the decision.

---The All Saints/Waccamaw case (the 2009 SC Supreme Court decision written by Chief Justice Toal recognizing the local parish as owner of the property and not the diocese). Pay close attention to how Toal and Beatty, the only other justice present who signed the decision, handle the All Saints references. A great deal of positive discussion might indicate slant toward DSC. Little reference, or critical remarks might indicate slant toward TEC/ECSC.

---Neutral principles. South Carolina courts follow neutral principles, as in the All Saints decision and Goodstein's Final Order. However, TEC/ECSC will argue that either Goodstein's Order went too far beyond neutrality and/or that neutrality is not appropriate in this case since it involves internal matters of a religious institution. Pay close attention to the justices questions and discussion concerning neutral principles. If they agree with TEC/ECSC, the courts apparently would have to go to the "deference" principle. That would leave TEC alone to settle its own affairs. This would be a defeat for DSC as they must maintain neutral principles.

---Hierarchical. Is the Episcopal Church hierarchical? A yes answer would lean to TEC/ECSC while a no would favor DSC. Listen for the number of times this term arises and the context in which it appears. Judge Goodstein ruled TEC is absolutely not hierarchical.

---The U.S. District Court case. Judge Houck, in Charleston, is handling the federal case in which the Church side is charging trademark infringement and asking the court to recognize Bishop vonRosenberg as the legal bishop of the Episcopal diocese and not Lawrence. The federal case may not be mentioned at all, but if it is, it will be interesting to see how the lawyers and justices handle it. Houck has said the proceeding in the state supreme court would have no influence on his case.

As I said, most of all observe the five justices because they are the only ones who really matter here. Watch them as they interact with the lawyers and with each other.


I think we should stop now and consider the gravity of this moment. The grand old Diocese of South Carolina has reached a new low point. It has split in two. Episcopalians have turned against fellow Episcopalians. Lawsuits abound. The two sides are behaving in a way St. Paul said was shameful. They are now about to appear before the highest civil tribunal in the state denouncing and counter-denouncing each other and pleading with the court to favor their side and reject the other. As a student of history, I must say this is the worst moment in the 230 year history of the grand old Protestant Episcopal Church in the Diocese of South Carolina, once the premier religion of a primal colony and state. This is a time that calls for a moment of somber and quiet reflection on this sorry state of affairs.

There have been numerous low points in the long history of this diocese. South Carolina was one of the first nine states (dioceses) that founded the Episcopal Church in the 1780's. One of the nine little crosses in the blue field of the Church flag is for South Carolina. However, it was a struggle to rebuild after the damage and loss in the Revolutionary War. Too, the Civil War caused all the southern dioceses to have to form a separate church which they did and then disbanded after the War. The lowest point before now was the infamous "Schism of 1887" in which the large parishes of Charleston staged a walk-out from the convention because one black person was present. The bishop gave in and agreed to a whites-only convention. Blacks were reduced to humiliating second-class citizenship. The diocese gained the well-earned reputation as the most racist diocese of the entire Episcopal Church. After 1947, it was the only diocese that had not integrated its convention. Even then white racists blocked that for seven more years until finally agreeing to admit historically black congregations. It was only in 1965 that all parts of the diocese were integrated, thus bringing an end to the Schism of 1887 nearly 80 years later.

The state of affairs today may be lower than the shameful racist post-Civil War period, but it is borne of the same underlying causes, prejudice against a minority. Discrimination against blacks turned into discrimination against homosexuals (and let's drop that nonsense that the schism of 2012 had nothing to do with gays). Both kinds of discrimination are wrong. Both are anti-Christian. I am weary of hearing all about how the Bible condemns homosexuality. Before the Civil War, countless preachers across the south quoted even more passages defending slavery. Discrimination is just wrong, whatever form it takes; and hiding behind out-of-context Bible quotes will not change that.

Well, one might ask, how did South Carolina get into this big mess? The short answer is that after 200 years in the Episcopal Church, the majority of the diocese lost faith in the Church of their ancestors. Why did they lose faith? Because the diocesan leaders told them they should not condone the "indiscriminate inclusivity" of the Church (equal rights for gays). Instead, they should discriminate against homosexuals and transgendered persons. The majority of communicants agreed. It was as if everything old was new again. Eventually the secretive ruling clique, of perhaps two dozen people, organized a schism. Church lawyers have argued in court this was a conspiracy against the Episcopal Church. Having studied the historical evidence, I tend to agree. There was a premeditated plan to remove the diocese from the Church. We just do not know yet how far back that planning went.

Whoever "wins" in court will not really be winning. Everyone in this situation loses. If DSC sees Goodstein's Order prevail, where will it be? Three years on, it is in nowhere going nowhere. It is not part of any Anglican province. It has just set up an "Institute" to train "leaders." Leaders for what? Where will they lead anyone? Refusing to join any larger group, DSC has no future. Besides, in time, discrimination against gays will pass leaving DSC another shriveled and diminished relic in the museum cabinet of South Carolina history. If TEC/ECSC wins, they will gain empty or nearly empty buildings. With perhaps half of the old diocese, it will struggle just to maintain the properties. Hard feelings are bound to last a long time.

However, I refuse to end in despair. If history leaves us sober and sad today, it does not leave us hopeless. I take my inspiration from the African Americans and their incredible example of survival, against 200 years of slavery, then another 100 under virulent racism. Through it all, they never lost their dignity, their humanity, and their profound faith in a better tomorrow. They refused to despair. We should too. One day, perhaps sooner than we imagined, the wrongful bigotry against homosexuals will pass away. Then, I predict the good people of South Carolina will look back in shame and sorrow at the self-destructive Schism of 2012, the darkest moment in the history of the great old diocese of South Carolina.