Friday, May 1, 2020


On April 30, 2020, the Anglican Diocese of South Carolina filed "Brief of Appellants" in the United States Court of Appeals for the Fourth Circuit, in Richmond, Virginia. This is an appeal of the rulings of U.S. District Court Judge Richard Gergel, of Charleston. 

A brief recap:  The case was vonRosenberg v. Lawrence, brought by the Church side in 2013 to prevent the disassociated side from infringing on trademarks. In other words, the Church side claimed to be the legal and legitimate heir of the old diocese. On Sept. 19, 2019, U.S. District Court Judge Richard Gergel issued an opinion recognizing the Episcopal Church diocese as the heir of the historic diocese and declaring an injunction against the disassociated diocese. On Oct. 7, the ADSC announced it would appeal Gergel's decision. The ADSC did appeal to the U.S. Court of Appeals. It then asked Judge Gergel for a stay pending the appeal. Gergel denied this on Dec. 18. ADSC then asked the Court of Appeals for a stay. The CA denied this on Jan. 14, 2020. The two sides were then to submit briefs. On yesterday, the ADSC submitted its arguments. 

The full paper is 95 pages, but the arguments are given on pages 1-67. As everyone knows, I am not a lawyer, am not an official in any diocese, and am speaking only for myself. Here is my take on yesterday's brief.

The arguments presented form a combination of well-known positions and new rejections of Gergel's contempt holdings. We all know ADSC 's old arguments well:  ---The (Anglican) Diocese of South Carolina is the historic diocese, ---The Episcopal Church in South Carolina is a new creation formed in 2013, ---The term "Episcopal Church" is generic and cannot be copyrighted, ---the (Anglican) Diocese of South Carolina still owns the state registered marks, ---this dispute is one over property and this falls under the jurisdiction of state law and neutral principles of adjudication. To these old positions, the ADSC lawyers added that Gergel's injunction was narrow and that their party did not violate the injunction and should not have been held in contempt.

All of the old arguments have been settled in court either by the Supreme Court of South Carolina or the U.S. District Court. They are no longer issues before the court, except, of course, in this appeal of the federal decision. The SCSC ruled that, following state law and neutral principles, the Episcopal Church diocese is the owner of 29 of the 36 parishes in question as well as the Camp. This is true of the parishes because they acceded to the Dennis Canon of the Episcopal Church. Thus, there can be no argument that state law still protects the claims of the failing party. The federal court ruled that the Episcopal Church side is the legal owner of the marks and rights of the pre-schism diocese, that the Episcopal diocese is the heir of the old diocese, and that the disassociated side is a new entity formed at the schism of 2012. The important principle established by the federal court was that the Episcopal Church is a hierarchical institution entitled to govern itself.

In my view, the ADSC is almost certain to fail in its quest to overturn Judge Gergel's decisions. In the first place, yesterday's brief is amazingly weak. It offers nothing new and only repeats a few arguments all of which have already failed in court. In the second place, Judge Gergel's order of last September is virtually appeal-proof. It is a masterpiece of deep and wide jurisprudence. In it, the judge gave twenty examples where the Fourth Circuit had already ruled on the issues involved.

In addition, the Appeals Court has a history with this case. Twice the Episcopal Church went to the court asking for direction to the local district judge. The court ordered Judge Houck to proceed with the case---twice. He declined to do so, and died soon thereafter, eventually to be replaced by Judge Gergel. And, as we have seen, the court denied ADSC's petition for a stay of Gergel's injunction pending the appeal. All of this together suggests a favorable attitude of the court to the EDSC party. Thus, a combination of Gergel's powerful order, ADSC's unconvincing case, and the appeal court's record points to a probable favorable outcome for the Episcopal Church side. In order for an appeals court to overturn a lower court decision, there must be a compelling case made of errors in the lower ruling. There is none here. 

Next we can expect a reply brief from the EDSC lawyers. Then, I anticipate the appeals court will decide whether to entertain oral arguments or go to direct decision. In the two times the EDSC lawyers appealed, the court held oral arguments that were live-streamed by audio. I expect a resolution of all of this within several months.

It seems to me that, considering all that has happened, it is almost certain that the Episcopal Church will prevail in federal court. If so, I expect the church side will move expeditiously to recover the properties and assets of the historic diocese that are now in the possession of the disassociated party.