THE DIOCESE OF SOUTH CAROLINA'S APPEAL TO 

THE UNITED STATES SUPREME COURT

On February 9, 2018, the Diocese of South Carolina submitted "Petition for Writ of Certiorari" to the United States Supreme Court. This was an appeal of DSC to SCOTUS in an effort to overturn the South Carolina Supreme Court's August 2, 2017, decision favoring the Episcopal Church and the Episcopal Church in South Carolina. In that ruling, the majority of justices of SCSC said that 29 of 36 parishes and Camp St. Christopher remain under trust control of TEC and TECSC; they also said TEC was an hierarchical institution.

[NOTE. Again, I must remind readers I am neither a lawyer, nor a legal expert, nor an official of a diocese. I am giving my opinions as an ordinary layman.]

The Petition was sent on Feb. 9 to the DSC parishes along with a letter from the Rev. Jim Lewis. The most interesting point of Lewis's letter is that, for a change, it avoided any reference to God's favor of DSC. DSC has not made such claims since the Aug. 2 SCSC decision.

A "petition for cert" is a request to SCOTUS to take an appeal. SCOTUS receives at least 10,000 of these every year. They accept around 100, or 1% of the total. Most are discarded quickly. The term of SCOTUS runs from October to June. Thus, we are likely to get a response to DSC's "Petition" by July of 2018. SCOTUS avoids carrying over issues from one session to the next. The high court will either accept or deny the petition. If it denies, that is the end of the matter. The SCSC decision of Aug. 2, 2017, becomes final. If it accepts, SCOTUS will hold a hearing in its 2018-2019 session and issue a written decision by July of 2019.

A SUMMARY OF THE PETITION

The Feb. 9 Petition is surprisingly brief and straightforward. It is not just another lengthy, complicated, and dense treatise that one may have come to expect from the DSC lawyers. 

The  main point of the Petition is that "neutral principles" must prevail in this case. As in the famous Jones decision, a court may resolve property disputes between two religious groups following local laws of property and trust. The lawyers argued that "neutral principles" must be strictly followed but that the SCSC erred in making a "hybrid approach." That is, SCSC did not adhere to a strict interpretation of neutral principles as they should have. The lawyers briefly reviewed what they claimed were 11 jurisdictions in which courts properly applied a "strict approach" and 8 in which courts, incorrectly, followed a "hybrid approach." In conclusion, they said that SCOTUS should clarify this issue as guidance for courts around the country. In other words, the court should promote the "strict approach" to neutral principles. (This strict approach would mean that the SCSC decision of Aug. 2 would be overturned.)

Observations on the Petition:

1 --- It continues the main argument that the DSC lawyers made in the circuit court and in the SCSC that the 2009 SCSC All Saints decision should be expanded to the whole diocese. That decision found for the local parish in both legal rights and property ownership.

In fact, the only one of the five SCSC justices to defend the All Saints decision in the Aug. 2 ruling was Jean Toal, the author of the decision. 

Moreover, All Saints is unique in the U.S. Not one other state supreme court has replicated it. It stands as the only case in which a secessionist unit got a final decree in its favor against the Episcopal church and diocese. 

An important point to make about the All Saints case was that it was a dispute between the diocese and a parish. It was not between the national church and a diocese. Since it was contained entirely within the state of SC, there seemed to be no question among the justices as to the outcome. Thus, trying to apply All Saints now to the church/diocese disagreement is like mixing apples and oranges. 

2 --- It argues that the First Amendment to the U.S. Constitution works in favor of the diocese. 

The First Amendment forbids the government, as a court, from interfering in a religious institution. 

The key question then becomes whether the court is interfering in a church. The majority of the SCSC said that TEC is a hierarchical institution (courts around the U.S. have overwhelmingly agreed with this). If TEC is hierarchical, then the national church has sovereignty over the local parts, as the dioceses. Dioceses are not independent agents but are subject to the authority of the national church. If TEC is hierarchical, then the court must defer to the church to govern itself. If a dispute is religious in nature, a court may not interfere. It has to defer to the religious institution.

Interestingly, the DSC lawyers described the situation in SC as a "schism." This word appeared in the very first sentence of the Petition. "Schism" could well be interpreted as a religious dispute. I do not see how the lawyers thought the use of this word would strengthen their case. (To my knowledge, this is the first time DSC has used the word "schism" in an official document since the schism of October 2012.)

The Dorchester County circuit court judge seemed to have no problem in delving into the internal working of TEC to declare it to be congregational in nature. This created great consternation in the SCSC where even Chief Justice Toal railed against the lower decision and not a single justice arose to defend it.

3 --- The DSC lawyers said the Dennis Canon could not and did not create a trust under SC law.

The 2009 All Saints decision, and Toal in the Aug. 2, 2017 decision, said that, under SC law, the title holder [parish] had to create a trust in writing for a beneficiary [diocese and TEC] and this had not happened. Therefore, the Dennis Canon was not valid in SC because it claimed to be imposed from the outside.

In the Aug. 2 ruling, four of the five justices agreed that the Dennis Canon had indeed set up a trust but in different ways. Justices Pleicones and Hearn said the Dennis Canon automatically went into effect because TEC was hierarchical and any ruling of the national church immediately applied to the church's local parts. Justices Beatty and Kittredge said the Dennis Canon did go into effect, not because it was imposed by the national church but only because the parishes acceded to it individually. However, while Beatty opined that a parish could not unilaterally revoke its accession, Kittredge said a parish could revoke its accession. Beatty concluded that 29 of the 36 parishes had in fact made irrevocable trusts for TEC. This made three (Pleicones, Hearn and Beatty) of the five justices to agree that the Dennis Canon was effective in SC (thus reversing the All Saints principle). In sum, the SCSC ruled that the Dennis Canon effectively created a trust in SC whether by Church authority or by parochial action.

4 --- The Petition has numerous historical inaccuracies. 

In one (p. 10), it said DSC acceded to the TEC Constitution and Canons in 1841. In did indeed vote such in 1841. However, DSC originally acceded in 1789. Before the church constitutional convention of that year, the church agreed that the states would draw up a constitution and canons for the whole church and that their representatives would agree to it by signing their names for their respective states. The TEC C and C was not submitted to the individual states for ratification (as the U.S. Constitution was) because it was automatically ratified by the signatories of 1789. All of the SC delegates signed the documents giving SC's permanent accession to them.

In another (P. 10), the lawyers said DSC withdrew its accession to the TEC canons from 2009 to 2011. This is a dubious, and very debatable assertion.

In another (p. 11), they said DSC "disassociated" from TEC. Ditto. 

In yet another (p. 11) they said All Saints "involved a property dispute between the national Episcopal Church and a local congregation." Actually, it was the Diocese of South Carolina, particularly Bishop Edward Salmon, that fought that case all the way from local to state supreme court. It was "a property dispute" between the diocese and a parish.

5 --- It is most curious to note the Petition's reference to Justice Kaye Hearn.

It has only one, fairly brief, paragraph about her. One will recall the major effort DSC made in August and September of last year to invalidate Hearn's decision and have her removed from the case. That fell flat, in fact, may have backfired as every one of the other justices vociferously defended her, even chastised DSC for the smear campaign. Now, this Petition changes the argument against Hearn from herself to her husband [!] (p. 17). (The motion to recuse was based primarily on the fact that Justice Hearn's husband was involved in the underlying schism and was deposed in this case as a witness in support of the national Episcopal Church, p. 17). It is disingenuous to think the august SCOTUS would be impressed by such rank amateurism as this.

The U. S. Supreme Court has provided two avenues for courts to deal with property disputes between religious bodies. One is the Serbian Orthodox decision of 1976. See the Wikipedia article here . This held that courts may not interfere in the workings of a hierarchical religious institution because of the First Amendment to the U.S. Constitution. Thus, a hierarchical church, such as TEC, must be left alone to decide its own affairs including questions of property ownership. Following this path, the courts would defer to TEC to decide the property issues in South Carolina. 

The other avenue came in the decision of Jones v. Wolf in 1979. Find a summary here . In this, the courts may take a "neutral" approach to decide property disputes between church bodies. The court would favor neither side but make a judgment drawn from local property laws. This, however, would presume the church in question to be non-hierarchical so as not to violate the Serbian Orthodox case.

The DSC lawyers based their entire Petition to SCOTUS on the Jones decision. They asked the court to take a resolute stand for a strict interpretation of "neutral principles." They said the SCSC had failed to do this; and only SCOTUS could correct the error.

It seems to me that all this boils down to whether the Episcopal Church is hierarchical or not. The circuit court went out of its way to declare TEC to be congregational. The SCSC rejected this. The majority of justices said TEC is hierarchical. 

WILL SCOTUS TAKE THIS APPEAL?

Not likely. The DSC lawyers' case in both circuit court and SCSC was based on two ideas: that TEC is not hierarchical and therefore not entitled to the Serbian Orthodox principle; and state laws on property, trusts, and corporations alone must decide this case under neutral principles.

In the first place, courts around the U.S. on the whole have agreed that TEC is hierarchical. Perhaps for this reason, SCOTUS has never accepted an appeal from an Episcopal Church case. Numerous appeals have been made to the high court, most famously from the Virginia breakaway parishes, and from the Texas case of Ft. Worth.

In the second place, the purpose of SCOTUS is to clarify constitutional issues. It does not concern state law except as it may affect the constitution. The DSC argued their cases entirely on state laws.

Moreover, the avenue of "neutral principles" does not preclude the "hierarchical principle." For instance, the California courts used both in their decisions concerning San Joaquin that came down entirely on the Episcopal Church side. Thus, it is not a question of one principle or the other. Both can be used and have been used.

It seems to me DSC's appeal to SCOTUS is another example of their post Aug. 2 strategy of defer and delay the inevitable. First, they agreed to a mediation process. They went to meetings three times and apparently agreed to nothing. At least we have no evidence of any negotiation let alone settlement. The last we heard, Bp Lawrence had agreed to consider an offer from TECSC to have the Church bishop meet with the 29 parishes to discuss "settlement." Lawrence was to have responded to this offer by Feb. 2. There has been no evidence since then of any movement on this. It seems that DSC is only using mediation to delay the federal court case. So far they have used up five months by this tactic.

DSC has also entered a new lawsuit in the circuit court demanding money from TEC/TECSC under the "betterments statute." They have asked this be put on "stay" pending the outcome of the appeal to SCOTUS. TECSC has asked the court to dismiss this suit. All of this is pending in the circuit court and eating up more time.

The federal court will eventually resume the case and hold a trial. Of course, if the court rules in favor of TEC/TECSC, which is likely, DSC can appeal to the U.S. Court of Appeals dragging out the end for another year or more.

The fundamental decision in the dispute between the independent diocese and the Episcopal Church has already been made. The Church won. Apparently what we have now is a movement of DSC to delay the end as long as possible. This will give them much more needed time to rally the faithful against the Episcopal Church and to prepare the people to vacate the buildings as DSC communities. That is what is happening now. I see no other way to view what is going on. The pain continues. 


[NOTE. On Friday, Feb. 9, DSC sent the Rev. Jim Lewis's letter and the Petition to the DSC parishes. As of this writing (1 p.m. Feb. 12) DSC has not released these documents to the public. Presumably they will do so shortly. 

UPDATE. On Feb. 12, at 4:50 p.m., DSC publicly released Lewis's letter and the Petition. Find the letter here and the Petition here .]