THREE STRIKES AND YOU'RE OUT
Memo to the independent Diocese of South Carolina: the inning is over and the game is about done. You've had three strikes and you're out. Time to accept the reality of loss, as hard as it may be. Strike 1: the South Carolina Supreme Court ruled on August 2, 2017 that the Episcopal Church and the Episcopal Church in South Carolina have trust control over 29 parishes, and Camp St. Christopher. Strike 2: the SCSC rejected DSC's request for rehearing and, with reprimand, recusal of Justice Kaye Hearn. Strike 3: the U.S. Supreme Court refused to consider the SCSC decision, even to put it on the short list.
What we have seen since the third strike, of last June, is the loser arguing with the umpires that the calls were wrong. It won't work. Argue all one wants, the result will remain the same. The horse is out of the barn, the train has left the station, the toothpaste is out of the tube, insert whatever image you wish here.
In the circuit court appearance, of last month, the DSC tactic was to sow confusion about the SCSC decision. When one does not have clarity on one's side, muddy the waters. This roil the waters ploy may work in the short run, as it is apparently doing with Judge Dickson, but it will not work in the long run. Dickson has no choice but to implement the SCSC decision which has three precise and concise directions in its conclusion. It is unthinkable that a circuit court judge would dare to refuse to enforce a state supreme court decision, even more inconceivable that he would re-litigate the case. It's not going to happen. Dickson is well-known for his reason and integrity.
Now, in the federal court, the DSC tactic is to inundate the judge with paper. DSC says it submitted 38 motions to Judge Gergel on December 7 (DSC posted 13 on its website. Where are the other 25?). 38 motions at once! (Find links to the papers here .) I have never heard of such a thing. If one does not have quality on one's side, try quantity. If DSC thinks this is going to overwhelm Gergel and throw him off his game, they do not know him. He is famous for his no-nonsense, efficient, fair, and expeditious approach. He is out to get the job done as quickly and correctly as possible. Gergel will not be stymied by DSC's transparent attempt to confuse him.
So, what about the 38 papers of last Friday? It has taken me some time to go over them and try to understand them. Here is what I see. They are ridiculous, amazing in their absurdity. Reading them is trying to make sense of the senseless, reason from the unreasonable. I am astonished at how weak and irrelevant they are. I cannot imagine any judge being favorably impressed with them.
As I read this nonsense, what I see is that the DSC lawyers are trying to convince Judge Gergel that Bishop Lawrence cannot be in violation of the Lanham Act because the terms in question are all "generic," e.g., "episcopal." While arguing this, they are operating from their pre-SCSC decision stance that the DSC was, and still is, an independent and self-governing entity not subject to the authority of the national Episcopal Church. In fact, the SCSC has already overruled this. They said the Episcopal Church is hierarchical and the Episcopal Church in South Carolina is the heir of the pre-schism diocese.
In spite of all the DSC lawyers' tactics of obsfucation by clouds of fog and deluges of paper, the issue at hand in the courts is really clear and simple: Is the Episcopal Church hierarchical? If it is, it has the right to determine its own internal affairs and is protected by the First Amendment of the U.S. Constitution. This would make TECSC the legal Episcopal diocese and Skip Adams the legitimate and legal bishop of the diocese. If it is not, DSC is an independent entity entitled to keep the names, insignia, legal rights, and assets of the old diocese, and Mark Lawrence can go on insisting he is the bishop of the Episcopal diocese.
So, the basic question at hand before the courts is whether the Episcopal Church is hierarchical. Judge Weston Houck, who handled the federal case before Gergel, declared that TEC was hierarchical. The majority of the justices of the SCSC said TEC was hierarchical, and made it clear that TECSC is the heir of the pre-schism diocese.
No doubt Judge Dickson will recognize this once he blows away the fog of confusion and realizes that he has no choice as a judge but to carry out the SCSC decision. In every likelihood, Judge Gergel will follow Houck's and the SCSC justices' lead and declare TEC to be hierarchical. That will leave him no choice as a federal judge but to side with TEC.
The people of DSC should recognize the reality that the game is over, as much as they might not want to do so. Things do not always work out the way we think they are going to, and sometimes that hurts, maybe a lot. The courts have ruled in favor of TEC. What is left is just clean-up, that is, putting into effect what the courts have already decided.
Three strikes and you're out. Judges Dickson and Gergel are bound to bring this unfortunate game to a close, and I expect sooner rather than later. Gergel has set the trial in his courtroom for two and a half months from now. The expectation is he will wrap this up asap.
I suppose these 38 papers are the best the DSC lawyers can do under the circumstances, but they really have already lost these cases. Nevertheless, if this is the best they can do, the trial will be no contest. Odds are strong that TECSC will regain full ownership of the old diocese by right of hierarchy and the Constitution, and will do so in the near future.
My point is, we have passed the crisis in the legal war. The end is in sight even if it is still far on the horizon. This man-made madness will end one day. I say the sooner the better. Enough already.