Sunday, June 21, 2020


Emotions are running high these days in lower South Carolina. The schismatics are ecstatic, popping champagne corks everywhere and crowing about their tremendous supposed final victory in their long running legal war against the Episcopal Church. The Episcopalians are bewildered and saddened. All of this is perfectly understandable. This is the schismatics' first significant legal win in five years. In those five years both the South Carolina Supreme Court and the federal court ruled against them. They lost the war. In reality, Judge Dickson's ruling of last Friday changed nothing. They have still lost the war. Let me explain.

There were two big issues in the legal war. Before the schism, diocesan leaders convinced a majority of communicants in the diocese that they could leave the Episcopal Church and take two things with them, the diocese and the local properties. They went to court and lost both. As for the diocese, federal judge Richard Gergel ruled last September that the Episcopal Church is hierarchical and the church diocese is the one and only legal heir of the historic diocese. The breakaway contingent is a new association that has no right whatsoever to the names, marks, and identities of the Episcopal diocese of South Carolina. The new organization appealed Gergel's decision to the U.S. Court of Appeals where it is now pending a decision. Odds are very strong that the appeals court will uphold Gergel. For all intents and purposes, the issue of the ownership of the diocese has been settled. That theater of operations in the old legal war has been all but closed.

The second issue was always the more important one, the ownership of the local properties. Under Episcopal Church law, all local church property is held in trust for the Episcopal Church and its local diocese. If the congregation leaves the Episcopal Church, the Church becomes the legal owner of the property. The old diocesan leaders told their people this law did not apply to them. On Jan. 4, 2013, the schismatic leaders filed suit in court for a judgment declaring their ownership of the local properties. On Feb. 5, 2015, the circuit court of Judge Diane Goodstein ruled entirely in favor of the breakaways. Her decision was so over-the-top it was ridiculed to death in the hearing before the South Carolina Supreme Court in September of 2015. Not a single justice arose to defend any part of Goodstein's trial or decision. Her judicial reputation was, to put it kindly, not enhanced by this debacle. She failed to get her seat on the state supreme court for which she had longed. 

Four of the five justices of the SCSC ruled that the Dennis Canon was valid in the state and that 28 of the 36 parishes in the lawsuit had acceded to the Canon. They reversed Goodstein and gave three majority decisions on the last page of their ruling. There was no question about what the justices ordered. They were clearly listed one, two, three.

The SC decision of Aug. 2, 2017 became the law of the land. The court refused a rehearing and issued a Remittitur to the circuit court to implement the decision. The breakaways applied to the U.S. Supreme Court for cert but the court refused to take the case. With this, the breakaway lawyers made a major shift in tactics. Instead of challenging the majority decisions themselves, they shifted to challenging the way in which the decisions had been made. They asked the circuit judge, Dickson, to discard the final decisions of the SCSC and decide on his own the issues that had been settled in them. In other words, he could reinterpret the conclusion by reinterpreting the process the justices had used in reaching their conclusion. This was an outlandish tactic, but it worked! Dickson went along. Whereas the SCSC decision said that the 28 had acceded to the Dennis Canon, Dickson declared this to be wrong, that they had not acceded. He directly contradicted the core substance declared by the state supreme court. In effect, he nullified a state supreme court decision and published a result opposite of the decision. He presumed to replace the law of the land with a different order.

Can a circuit judge discard a law of the land and substitute his own order? The judicial system we have is now and has always been a strict hierarchy. Courts are tiered from lowest to highest, in the state the state supreme court, in the country, the United States Supreme Court. Under our system, a lower court is subservient to a higher court. It does not have the right to substitute its own law for an established higher law from a superior court. 

The Church side will certainly appeal Dickson's decision and ask for a stay in the process. It will go to the South Carolina Court of Appeals. Basically, the appeals court can uphold or overturn Dickson's order. They have three choices of actions:

1-refuse to accept the case. This would essentially leave the Dickson order as final. 

2-accept the appeal and rule to uphold Dickson. This would also essentially leave the Dickson order as final (except this could be appealed to the SCSC). 

3-accept the appeal and rule to overturn Dickson and uphold the state supreme court decision. With this, they would issue an order explicitly directing Dickson to implement the SCSC decision. Of course, the breakaways could appeal this to the SCSC. 

In my view, there is virtually no question that the appeals court will choose door number three. If they choose one or two they will be setting an incredibly dangerous precedent--that a circuit court can overturn a supreme court decision. This would create nothing but chaos in the whole judicial system. Thus, the integrity of the entire court system is at stake.

At any rate, the goals of the two sides are opposite. The church side wants to implement the SCSC decision of Aug. 2, 2017 and regain physical possession of the 29 parishes in question and the Camp. The breakaway side wants to replace the SCSC decision with Dickson's new order and keep possession of the local churches.

So, Dickson's decision of last Friday changed nothing. The schismatic side is still in possession of the parish properties in question as they have been for seven and a half years. The question of the day is whether they will remain in possession or hand the properties over to the Episcopal Church.

All of this is ironic because five years ago this month, the Episcopal Church offered the breakaways this very settlement. They proposed to give all the local properties to the parishes in return for ownership of the historic diocese. The new association flatly refused this offer. Since then, both sides have spent millions of dollars and a lot of agony going nowhere. They are in the same place now they were five years ago. The Church has possession of the historic diocese and the breakaways are in possession of the local properties. Plus ça change, plus c'est la même chose.

I cannot imagine any scenario in which Dickson's order of last Friday will stand. Surely a circuit judge under a Remittitur does not have the right to discard this and retry a case on his or her own. That is not the way our judicial system works. As Goodstein's decision five years ago, Dickson's effort is so out of line, the courts cannot allow it to stand. It jeopardizes the whole structure of the judicial system. I expect Dickson will meet the same fate as Goodstein when his decision gets to the higher tribunal. I imagine it will be ridiculed out of the room right away.

So, here we are seven and a half years into the schism with the two sides still at total war with each other. All of this is a shocking scandal. The wounds that church people have inflicted on each other are beyond shameful. And, all this because some people refused to accept that all human beings are children of God, made in the image of God. The people who made this disaster will be remembered for what they did. A century from now, people will shake their heads in dismay at the all this, the way we now hold our heads down in shame at the way the diocese of South Carolina treated blacks in the past. So, nothing has really changed. The issue is the same. It is to respect the equal worth and dignity of all people notwithstanding race and sexual orientation. 

In reality, Dickson's decision has changed nothing. All it means is that this disaster will be dragged out for years to come before the law of the land is finally obeyed. Meanwhile, we are called to follow the way of love. Sometimes this is hard. Sometimes it calls for weeping. Sometimes it calls for great sacrifice. But, we do it because it is the right thing to do. Our guiding faith is that love will win out in the end.

Remember friend, we are called to the living of this hour in the way of love. Peace.