Monday, August 7, 2017


The First Amendment to the U.S. Constitution:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..."

The Dennis Canon (The Episcopal Church, 1979):

"All real and personal property held by or for the benefit of any Parish, Mission, or Congregation is held in trust for this Church [the Episcopal Church] and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons."

By now everyone knows the essential parts of the SC Supreme Court decision of August 2, 2017: TEC and the Church diocese regain control over 29 parishes, 7 parishes are left as sole owners of their properties, and Camp St. Christopher returns to TEC and the Church diocese.

At this point it would be instructive to take a closer look at the actual decision and what all of this may mean. I should remind readers that I am not a lawyer or legal expert. My views here are only the thoughts and opinions of an ordinary layman.

The decision is really a collection of five different opinions, one by each of the justices. 

The justices split into two camps: Costa Pleicones and Kaye Hearn, versus John Kittredge and Jean Toal. In the middle was the "swing" vote, Justice (now Chief Justice) Donald Beatty.

For simplicity sake, we can call the P and H side, "the national church," and the K and T side, "the local church." 

The National Church side:

P delivered a sweeping opinion strongly supporting the Episcopal Church and dismissing all the arguments of the dissenters. He delivered a 17 page opinion taking the "lead" for the majority. 

P declared TEC to be hierarchical and said civic courts could not interfere in a hierarchical church. He asserted the deference principle: If the dispute is "a question of religious law or doctrine masquerading as a dispute over church property or corporate control," then the Constitution of the United States requires the civil court defer to the decision of the appropriate ecclesiastical authority. P insisted that the whole problem in SC developed from doctrinal, that is, religious, issues.

He dismissed the circuit court trial and decision of Judge Goodstein as "erroneous and prejudicial" and insisted her entire order should be overturned. 

Next he went to great lengths to refute Toal's signature work of the All Saints decision of 2009: I would now overrule All Saints to the extent it held the Dennis Canon and the 1987 amendment to the Lower Diocese's Constitution were ineffective in creating trusts over property... It was too narrow and localized and failed to understand the relationship between the local and national church. Moreover, P said the Dennis Canon did in fact create a trust in South Carolina because it was part of the hierarchical church. 

He was not through. P went on to declare the schism to be a premeditated conspiracy (ECSC atty Tom Tisdale had charged this in the circuit court): The record demonstrates that Bishop Lawrence and others in the Lower Diocese determined to leave TEC and take with them the property of those parishes in the Lower Diocese that were intending to disaffiliate. P outlined several steps in the conspiracy: amending governing documents, granting quit claim deeds, and revising corporate documents.

Finally P concluded that the court had to accept as final and binding the decisions of the Episcopal Church in regards to the local diocese. The Church must control its own decisions, not the court: The civic courts in South Carolina cannot decide disputes which are governed by church polity and governance concerning property ownership.

In sum, P discarded the Goodstein decision, the All Saints decision, and insisted all the matters of property and names, titles and rights of the pre-schism diocese were the prerogatives of the Episcopal Church, not the civic courts. In the end, he declared the preeminence of the First Amendment. 

No one could have written a stronger opinion for the national Church.

After P's "Lead" opinion, Hearn really needed to do little but echo it and add a few supporting elaborations on the same themes in her 15 page decision. She too insisted the dispute had grown from doctrinal issues, that the Episcopal Church was hierarchical, and that the court could not interfere in Church decisions. She held too that the Dennis Canon would trump any local law and would be binding in and of itself under the hierarchical nature of the Church. While adding a few items for emphasis, she really added nothing substantial to what P had written.

In sum, P and H argued that this dispute was religious, that the Episcopal Church was hierarchical, that the Dennis Canon was in effect, and that the civic court would have to defer to the Church in all internal decisions including property. In short, the national Church held sovereignty over the local entity which was subordinate and subject to the authority of the larger church. Therefore, state laws on property and corporate rights were irrelevant in this case because the local entity could not operate independently of the national church.

The Local Church side:

In his 9 page opinion, K declared that the proper application of "neutral principles" demanded that the local entities should have control over the local properties. However, he said the Dennis Canon had indeed created a trust, but only because the parishes had acceded to it: The local churches' accession to the 1979 Dennis Canon was sufficient to create a trust in favor of the national church.

K went on that the Dennis Canon was not irrevocable because it was in a church document that was inherently amendable. In other words, it was not permanent because the Church could change it. If the Church could revoke it, local parishes could too; and this they did as they ended accession to the TEC canons in 2010. Thus, at the time of the schism in 2012, all of the seceding parishes kept their properties in sole ownership because they had revoked the Dennis Canon two years earlier. To K, the Dennis Canon had no power in and of itself. It was only the accession of the local parishes that made it effective; and since it was not irrevocable, it was their withdrawal of accession that made it ineffective. 

K concluded that TEC and its diocese had no right to the properties or to the pre-schism diocesan rights. All of these matters had been determined under local property and corporate laws.

K treated the diocese and the parishes "neutrally," that is, as if they were independent equals of the national church. Following this, he found the local entities had operated entirely legally under state laws. However, he did not go as far in localism as did Toal.

Toal, not surprisingly, contributed the longest and most detailed opinion at 30 pages (39% of the whole decision). 

This was essentially an elaborate defense of the Court's 2009 All Saints decision which she had written. As K, she insisted that neutral principles meant the local entities had to be treated equally with the national Church; and she too agreed with the circuit court findings (except that the federal court would have to determine the trademark/copyright issue). 

T also followed the local property and corporate laws but varied from K in her view of the Dennis Canon. In contrast to K, T argued that the Canon never went into effect in SC because the title holders had never properly set up trusts for the church and diocese. In her view, simply acceding to the Church's Constitution and Canons was not enough because it was not following the letter of the law. Only the deed holder could set up a trust. 

Moreover, in T's view, the diocese had acted legally in changing its corporate charters and Lawrence had acted lawfully with the quit claim deeds since he was the Episcopal bishop.

T had the most extreme view of local rights, even more so than K. To her, there was no question that the diocese and parishes had acted legally and were the owners of the properties and rights of the old diocese (except those issues of national trademark properly in the federal court). She viewed the dioceses as virtually a a sovereign and self-governing unit, even if it were in a national church.

In sum, K and T argued that neutral principles demanded that the court settle the issues at hand: property ownership and legal rights of the old diocese. They strictly applied local laws on property and corporations to the questions at hand and found entirely for the local entities. Their only significant difference was in their understandings of the Dennis Canon. K believed it went into effect under the parishes accession to the TEC Constitution and Canons. T insisted it never went into effect because it had not been enacted in the proper documents by the deed holders ( the parishes). Both agreed, however, that the Dennis Canon had no effect in the state at the time of the schism and therefore there was no question that the parishes owned their own properties outright. K and T felt so strongly about this that both ended their essays with remarks against P and H that could fairly be described as bitter and sarcastic. This was something that I have never seen in a supreme court decision.

There was a deep, hostile divide between the national and local factions. If any compromise were possible, it was not apparent.

Beatty was in neither of the equal factions. He turned out to be the deciding vote in an apparent attempt to make a compromise between the two sides. He gave the shortest opinion, at just 3 pages, but these were the pages that made all the difference.

B tried to placate both sides. To K and T, he agreed with neutral principles and said the Dennis Canon was not sufficient to impose a trust in and of itself: The Dennis Canon had no effect until acceded to in writing by the individual parishes. For P and H, he agreed that 29 of the 36 parishes in the lawsuit had indeed given written agreement to set up a trust: their express accession to the Dennis Canon was sufficient to create an irrevocable trust. Then, he went on that 7 of the 36 had never given accession and therefore had never set up a trust. These 7, he said, must be free to have unqualified ownership of their properties. In other words, 29 parishes would return to trust control of TEC/ECSC and 7 would not. This was Beatty's compromise.

On the Dennis Canon, Pleicones and Hearn said it went to effect automatically under the umbrella of the hierarchical church and remained permanent. Toal, Kittredge and Beatty all rejected this but wound up having different views. T said it never went into effect in SC. K and B both said it did go into effect as part of the parishes' accession to the Constitution and Canons. Then, K and B parted ways. K said the trust was inherently revocable; and the parishes did this in 2010. B held the trust created by the accession was not revocable; so, even if the parishes claimed they removed the Canon in 2010 they could not and did not. Thus, B concluded that the 29 that acceded to the Canon did in fact create a trust that was irrevocable. He joined P and H on this point giving the overall decision to the Church side.  

How did the Court reach a settlement?

No one can know for sure since the justices' deliberations are private and leak-proof. Here is my opinion of how this probably happened:

The split occurred right away. Everyone knew that Hearn would side with TEC but P was a surprise. As it turned out he was by far the bigger advocate for the Episcopal Church and H simply echoed him, and not as well. 

T was resolved to protect and defend her signature achievement, the All Saints decision of 2009. Years from now, this will be her legacy. She fiercely defended it to the end. She has always been known as a formidable and "aggressive" contender. The Aug. 2, 2017 decision is probably her last; and she wanted to go out on a strong note. K agreed that local rights had to be protected under local laws, even if he swayed a bit to allow the Dennis Canon to come in under a general "accession." 

Month after month went by as the two sides dug in their heels and wrote, and rewrote lengthy and heavy treatises defending their positions. Neither side would budge.

Meanwhile, Beatty became Chief Justice (Feb. 1, 2017). He felt a responsibility to bring some closure. He knew this had to come to some kind of end. If it went on indefinitely, the reputation and standing of the state supreme court would suffer. The court had to go on; the court had to maintain its reputation. It seems to me that B consciously worked to find a compromise. However, the best he could work out really gave the bulk to the national church side. 29 to 7 was hardly equal.
Perhaps this explains why K and T ended with their uncharacteristically bitter comments.

All of this is just speculation of course. I am left wondering too why P was so contentious in his views. As T, this was perhaps his last decision. It should be remembered that T and P had had a tussle over the chair of chief justice (although they always insisted they remained good friends). In 2014, P was up for promotion to the seat. At the last minute, T decided she wanted to get elected to another 10 year term although she could serve only one year of it because of the mandatory retirement age. She managed to get herself elected. P was left to run next year. He did and he won but he had only one year to serve as Chief because of age. After his one year, Beatty took his turn by election of the state assembly. I can only wonder what all this might have had to do with the sharp differences between their opinions of last week.

In spite of all the five different opinions, make no mistake that the majority has ruled. They said 29 parishes properties return to control of TEC/ECSC. How the court reached that decision should be a fascinating subject of study one day.

The SC Supreme Court decision of Aug. 2, 2017, is the first time that a state supreme court has ruled on the relationship between the Episcopal Church and one of its dioceses. This decision will have great weight around the nation for a long time to come. In essence the court handed a great victory to the Episcopal Church. It said the Church is hierarchical. That means that sovereignty rests in the national church. Dioceses are subordinate and dependent on the national Church. They are not independent, self-governing entities. 

One note of caution, however, for the Church. The SC court did not recognize the validity of the Dennis Canon in and of itself. No court in the U.S. has done so. Whether the Episcopal Church has the right to impose unilaterally a trust on local properties is still an issue to be resolved.


These two events were not at all the same. Comparing the transcripts of the two, one may be surprised at the differences. On Set. 23, 2015, no one could have predicted how this would turn out nearly two years later. 

Toal dominated the entire hearing. She spoke more often and longer than anyone. Her famous "controlled aggression" showed as she raked DSC lawyer Alan Runyan over the coals. She ridiculed the circuit court trial. She shredded Goodstein's decision. She snatched Runyan's All Saints defense from him. Judging from all this one might have assumed she was ready to declare for the Episcopal Church side. 

In retrospect, it seems to me that Toal was perhaps unhappy with Runyan for the over-the-top circuit court decision that messed up her neat little reiteration of her All Saints decision of 2009. It had gone way off topic. Now she was going to have to clean up the mess and work hard to get the court around to her view of local rights. In the end, she could not do it. Not one of the other four justices joined her in defending All Saints. In perhaps her last hurrah, Toal was left alone to defend what will remain perhaps her signature achievement. 

Hearn was next in speaking in the hearing. Of course, she promoted the interests of the national church. Her written opinion was no surprise. Pleicones spoke only a few times in the hearing and really said little of substance, or at least little to indicate his lean. He showed absolutely none of the thinking that would come out so vividly in his written opinion. Everyone assumed Hearn would lead the Church side, but this turned out to be wrong. It was Pleicones who led the charge for the Episcopal Church. No one could have guessed that on Sept. 23, 2015.

In the end, it was not Hearn or Toal who determined the outcome. It was the mild mannered, rather quiet Chief Justice Beatty who settled the whole decision. He made the compromise to bring the intolerable war to a merciful end. The Episcopal Church and its diocese really owe a huge debt of gratitude to Beatty. In a way he contributed as much if not more to their final victory than did Hearn, or even Pleicones. Every Episcopal Church in South Carolina should put up a picture of Chief Justice Beatty. They should remember that he easily could have joined K and T for the local entities and the Episcopal Church would have gone down to a crushing defeat. In the hearing, he had said hardly a word. Sometimes those who say the least do the most.

The lawsuit in SC tested the wisdom of Solomon and the patience of a saint. We thought it would never end, even that it was perhaps unsolvable. It did end and it did reach a solution. The justices did the best they could. That is all we can ask of them. Now it is up to the good people on both sides of this tragedy to do the best they can to bring all of this to an end. It is most unlikely that the Court will agree to a rehearing and that SCOTUS will take the case. There is still the federal case but I think that will probably come down on the side of the Church too. Finally, at long last it will come to an end.