Sunday, September 4, 2016


Lately, I have been thinking a lot about anniversaries, probably because my wife and I just celebrated our Golden Wedding Anniversary.
There are three other anniversaries on the horizon that should be noted. One is the three year mark for this blog. I began it on September 11, 2013 (choosing 9-11 was a pure coincidence). Since then it has had nearly 150,000 "views" (149,375 to be exact). I never imagined when I began that so many people would care what I had to say. I hope my remarks have been thoughtful and informative. I appreciate all the emails I have received from my readers. Keep them coming. The most popular posting is "Chronology." Almost as popular, and much to my surprise, was my little essay on Donald Trump. It went viral on Facebook getting some 7,000 hits. Close in popularity was my modest tribute to Bishop vonRosenberg. To my surprise, it too went viral on Facebook with thousands of readers. It got the largest single one day viewing, at 3,000. I continue to be amazed at the power of the Internet and the pervasiveness of social media. This is truly a democratic age of information and communication.

(BTW, if you are wondering what is going on with the history of the schism that I have been writing for a long time now, I can tell you I am working on the last chapter, on the litigation. I hope the state supreme court decision will give closure and I can wrap it up. The manuscript is turning out to be long and detailed, well over a 600-page book as of now. When I spoke to Presiding Bishop Jefferts Schori about my history of the schism, she said put everything in it because a hundred years from now people will want to know the details. I think that was good advice. My aim is to get it out and published asap after the Court rules. I do not know yet the format, perhaps an e-book.)
Another anniversary coming up is one I had rather forget. Next month will mark the four year anniversary of the schism in South Carolina, October 15 to be exact. Oct. 15, 2012 was the day Presiding Bishop Jefferts Schori called Bishop Mark Lawrence and informed him of the Disciplinary Board for Bishop's decision to charge him with abandonment of communion. She informed Lawrence she had suspended him from all ministerial duties for the time being. After the call, Lawrence and the old diocesan ruling clique resolved to reject her orders and to put into effect their prearranged secret plan (Oct. 2) to remove the diocese from the Episcopal Church. This was the schism. Two days later, Lawrence  called Jefferts Schori and informed her that the diocese was no longer associated with the Episcopal Church. In effect, Lawrence abandoned the Episcopal Church which, of course, would include his consecration vows to conform to the government of the Church. The ruling clique called a special convention on Nov. 17 to rubber stamp this which it did.
The schism was not necessary. The issue of homosexuality, the direct cause of the schism, could have been dealt with under the arrangements of the Episcopal Church. Each bishop was left to choose whether he or she would allow the blessings of same-sex unions, and later of same-sex marriage. Bishop Lawrence could have remained in the Episcopal Church and simply disallowed these. Many bishops in the Episcopal Church have done so. The Diocese of South Carolina could have remained in the Episcopal Church and kept out equal rights for homosexuals. On this point, they gained nothing by leaving the Church.
What they gained, and everyone else too was a great deal of disruption and cost. Congregations were torn up from one end of the diocese to the other. The breakaway entity has suffered a 26% loss of active membership after the schism even while legal costs soar. The DSC has admitted to spending well over $2m for lawyers. We do not know the details of where the money came from or where it went as all of this is secret. The people of South Carolina have paid dearly for something that was not even necessary in the first place.
The future of DSC does not look good at all. They are about to join the Anglican Church in North America which is the proxy of GAFCON in the U.S. GAFCON calls ACNA a "province" and its archbishop a "primate" but no one else does. The Anglican Communion does not now and will never recognize ACNA as a province. Indeed, the January primates' gathering in Canterbury agreed that they would not admit ACNA as a province. That issue is now dead. ACNA will never be the replacement of the Episcopal Church in the U.S. So, what's the point of joining ACNA? None. The DSC is not now and almost certainly never will be in the Anglican Communion. The idea of being an extra-provincial diocese in the Anglican Communion is simply nonsense.
SC Supreme Court Hearing
The other anniversary approaching is the first year marker for the South Carolina Supreme Court hearing of September 23, 2015. We have all been on tender hooks for a long time now.
Steve Skardon has just posted a thoughtful reflection on this anniversary on his blog at scepiscopalians. I recommend it. He suggests that the cause for the long delay might be from disagreement among the justices on writing a decision. He speculates that former chief justice Jean Toal may have written a decision favorable to the DSC side only to have other justices reject it and move to write another. This is a reasonable theory.
However, I do wonder about the mechanics of that. The South Carolina Bar has a handbook on the working of the state Supreme Court that is available on the Internet (here). On Page 6:
"Step 4: Decision Conference. Following each day's oral arguments, the Court meets in closed conference. The assigned justice gives his/her analysis and recommendation, the Court discusses the case, and each member of the Court casts a preliminary vote, usually in descending order of seniority and beginning with the justice who has given the recommendation. When possible, the Court reaches a decision in each of the cases argued that day, but any decision is tentative until the opinion is issued. Immediately after the Court reaches its tentative decision in a case, the assigned justice prepares an opinion.
Step 5: Issuing an Opinion. After the justices agree on an opinion, it is issued, or filed with the Office of the Clerk of the Supreme Court, and made available...Until a decision is issued, any justice may reconsider his or her vote on the case."
What this says to me is that the justices made a decision on the church case immediately after the hearing last Sept. 23. The decision was by majority vote of the five justices. There is no way to know yet whether the vote was majority ( 3 or 4) or was unanimous (5). Afterwards the "assigned justice" (I guess Toal) drew up a written  opinion. It may very well be that some justices objected to parts of her written decision. I doubt that justices changed their initial votes later although they were allowed to do so under Step 5. It should also be remembered that the justices in the minority may write their dissenting opinions and may do so individually or together. Thus, I would question the suggestion that the justices rejected Toal's decision after she had produced a written opinion. It seems to me they must have made the decision on the outcome of the case at first, before any written decision appeared.
Here are my guesses on what is going on in the SC Supreme Court for whatever they are worth (which may be what you paid to be on this website):  ---the justices unanimously rejected Judge Goodstein's ruling of Feb. 3, 2015 (If they had simply validated it we would have known that long before now). ---the justices decided not to accept parts and reject parts of Goodstein's decision and send it back to her to be reheard in her court (Likewise, we would know that by now). ---the justices' initial vote was on a split decision. Both sides are requiring a great deal of time to construct their rationales (a unanimous decision would have moved along faster). The long delay says to me problematical internal disagreement. On that part, I am with Skardon.
The case before the SC Supreme Court is a very complex and complicated one that deals in some of the most basic constitutional issues in the nation. There are three big factors to keep in mind in contemplating the case. One is the All Saints decision of 2009, that was written by Toal. The next is Judge Goodstein's decision. The third is the state Supreme Court hearing of last September 23.

The All Saints decision ruled that All Saints parish of Pawleys Island had legally broken away from the Episcopal Diocese and that All Saints had retained sole legal ownership of its property. Since this decision was not appealed to the U.S. Supreme Court, it still stands as the only case in the U.S. finally settled on the side of the local parish against the diocese. It has been almost universally rejected and ignored by the rest of the states. The Court made three crucial points in its All Saints decision: 1---the Diocese did not have any interest in the property since it had given a quit claim deed to the parish in 1903 long before the Dennis Canon appeared (1979), and 2---the Dennis Canon cannot create a trust on its own for the Church and the Diocese. In SC law, only the title holder can create a trust for another party, and 3---All Saints parish had properly revised its corporate documents to separate itself legally from the Diocese. On the face of it, all of these should have been in the interest of the DSC side in last year's hearing, but that was not the case. Toal made it clear that All Saints was not necessarily the model to be followed. This was the author of that very decision speaking.
It seems to me the SC Supreme Court must make two big decisions in the church case: whether a diocese can leave the Episcopal Church, and whether a diocese can leave and take the property with it. These questions are fundamental to the entire case. These decisions require the Court to make some judgments about the structure of the Episcopal Church. There is no way to avoid this. However, they cannot go too far because that would violate the First Amendment requirement of the separation of church and state. I believe Judge Goodstein went too far in her decision, such as in the astonishing assertion that the Episcopal Church is congregational and organized from the parish upwards.
In my view, the difference in the All Saints case was that in that instance the diocese gave the quit claim deed long before the diocese and Church established the Dennis Canon. In Bishop Lawrence's case, however, he gave the quit claim deeds to all the parishes long after the Church and the Diocese had established the Dennis Canon as church law. That is why Toal wondered aloud if Bishop Lawrence had the right to do what he did. Under Church law he did not. He violated the Dennis Canon (as the Disciplinary Board said). However, the legal power of the Dennis Claim is still in doubt. Toal also made a point in the hearing that only the deed holder can establish a trust. It cannot be imposed from the outside. The Church side argued that the trust did go into effect as it was implied in the formal diocesan recognition of the Constitution and Canons of the Episcopal Church.
What all this boils down to is whether the Episcopal Church is hierarchical or not. That is basically what the SC Supreme Court has to decide. I do not see how the Court can avoid this. "Neutral principles" alone does not resolve the issues. As we have seen two states have already come up with diametrically opposed decisions following the same "neutral principles" guideline, Illinois for the breakaways, and California for the Church. If the SC Court finds TEC to be hierarchical that should settle it for the Church side. If it finds TEC not to be hierarchical that should settle it for the independent diocesan side because recognizing state laws on corporations and property would favor them.
I suspect that the long delay reflects a serious division of opinion in the Court and a concerted effort on both parts to take their time and "get it right" this time in contrast to the embarrassment of their 2009 All Saints decision. My guess is that there is no unanimous opinion. The big question of the day then is, Who won the majority?

At this point there is no way for anyone to know what the majority of justices decided. We have no choice but to wait, however impatiently, for the high court of South Carolina to render its great decision. We can be certain that we will have a decision. We cannot be certain of when that will be. However, I will go out on (another) limb and say it will be here before Christmas. Historically speaking, it is very rare for the court to go more than 14 months on a decision.