U.S. SUPREME COURT RULES

ON FIRST AMENDMENT

On yesterday, November 25, 2020, the United States Supreme Court issued a decision regarding the First Amendment of the U.S. Constitution. This could possibly indicate the court's attitude toward the Episcopal Church's petition for the court to consider the appeal of the Ft. Worth case. In the Ft. Worth case, the Texas Supreme Court declared that, even though the Episcopal Church is hierarchical, neutral applications of state laws must leave the secessionist faction with the legal entities and rights of the Episcopal diocese. The breakaway faction says neutral principles gives them the rights to the old diocese. In other words, state law trumps church law. In contrast, the Episcopal Church says the First Amendment precludes civil courts from interfering with internal church affairs. Thus, one side argues state law and other argues the First Amendment.

Find yesterday's Supreme Court decision here .

Find a CNN article about the decision here .

As background, Governor Cuomo, of New York, had place restrictions on numbers of people allowed in public gatherings, including religious ones, to prevent the spread of the coronavirus. Two groups sued over this, the Roman Catholic Diocese of Brooklyn and Agudath Israel, a Jewish entity. They argued that the restrictions violated the First Amendment that guarantees freedom of religion.

The court ruled 5-4 in favor of the plaintiffs, the religious groups. This was the first time the court ruled against such restrictions during the pandemic of this year. As a sign of the importance of the issue at stake, the court took the unusual step of presenting six opinions. To support the majority opinion, Justices Gorsuch and Kavanaugh presented their own explanations. Gorsuch (who attends an Episcopal church) wrote, "Government is not free to disregard the First Amendment in times of crisis." Kavanaugh, a Roman Catholic, wrote that the government actions violated the First Amendment. 

The four justices in the minority were led by Chief Justice Roberts. They contributed three separate opinions. In general they agreed that the government had the right to impose restrictions as long as they were not discriminatory against churches and that the government had the greater responsibility to protect the welfare of the citizenry. Yet, they too unanimously defended the First Amendment. Justices  Sotomayor and Kagan wrote, "Free religious exercise is one of our most treasured and jealously guarded constitutional rights. States may not discriminate against religious institutions, even when faced with a crisis as deadly as this one."

All nine justices arose to defend the First Amendment. The difference of opinion between the majority and the minority was whether the state had discriminated against religious institutions. The majority said yes. The minority said no. 

The Episcopal Church case will depend on whether the U.S. Supreme Court justices see the Texas Supreme Court decision as a matter of state law or of the First Amendment. The whole argument from the Episcopal Church is violation of the First Amendment, that is, the state unconstitutionally intruded into the affairs of a religious entity. Specifically, the Church lawyers argued in their recent brief to SCOTUS that the 1979 Jones decision had produced vastly different outcomes because it lacked sufficient protection for religious institutions. The lawyers called on the court to redefine Jones.

Yesterday's decision from SCOTUS tells us the court is overwhelmingly concerned about protecting the First Amendment. All nine justices were adamant about this. If this concern carries over to the Episcopal Church case from Texas, it could mean a favorable tilt to the Episcopal Church side. 

First, the Supreme Court has to grant, or deny, "cert." The Episcopal Church is asking for cert. If they deny cert, the matter is over and the Texas Supreme Court decision stands. The breakaway faction will be left as the legal heir of the pre-schism diocese. If SCOTUS grants cert, they will review the Texas SC decision, hold a hearing, and render a decision either upholding or overturning the Texas SC decision. If they do grant cert, we could expect a decision from the U.S. Supreme Court by next summer. If they do grant cert, it will mean the justices see the Texas case as one of the First Amendment and could well foreshadow a ruling favorable to the Episcopal Church.

As of now, it looks as if chances are slightly better for the court to grant cert. It is still a long shot, but less so today than yesterday.

EPISCOPAL CHURCH ASKS U.S. SUPREME COURT TO TAKE CASE FROM FORT WORTH

The Episcopal Church and its diocese of Fort Worth have asked the United States Supreme Court to accept their appeal of the decision of the Texas Supreme Court on the Ft. Worth case. On October 19, 2020, TEC filed "Petition for a Writ of Certiorari" with SCOTUS for the Texas Supreme Court decision of May 22, 2020. That decision found all in favor of the breakaway faction that goes under the name of the Episcopal Diocese of Fort Worth.

The breakaway side has until December 23, 2020 to present a reply brief to SCOTUS. One amicus curiae brief has already been filed in support of TEC, from the Greek Orthodox Archdiocese of America, on Nov. 18, 2020. Other amici briefs are likely to be filed.

BACKGROUND:

---The Diocese of Fort Worth was created in 1983, explicitly acceding to the Constitution and Canons of the Episcopal Church. The Dennis Canon had been adopted by TEC in 1979.

---In 2008, a majority of the clergy and laity left the Episcopal Church retaining the name "The Episcopal Diocese of Ft. Worth." The Episcopal Church reorganized the Episcopal (loyalist) diocese. Both groups used the same name.

---In 2011, the 141st District Court (state) ruled all in favor of the TEC diocese declaring "The Episcopal Church...is a hierarchical church as a matter of law." The breakaways appealed to the Texas Supreme Court.

---In 2013, the TSC, in a 5-4 decision, reversed the District Court decision. It declared Texas law overruled the Dennis Canon because the canon did not contain a provision that it could not be revoked. TSC remanded to the District Court with instructions to favor the breakaway side.

---In 2014, TEC and its diocese of Ft. Worth asked the U.S. Supreme Court to accept an appeal of the TSC decision. SCOTUS denied cert.

---In 2015, the District Court implemented the remand from TSC favoring the breakaways. The TEC side appealed to the Texas Second District Court of Appeals.

---On April 5, 2018, the Court of Appeals issued a 178-page judgment finding TEC to be an hierarchical religious institution to which the civic court must defer even under neutral principles. The court found: the breakaways' actions of disaffiliation in 2008 were invalid; the TEC diocese controlled the appointments to the board of the corporation; titles to the properties were held by the TEC diocese; and the Dennis Canon did not impose a trust; however, this was a moot point because under hierarchy, TEC and its diocese maintained control of the property. The breakaway side appealed this to the TSC.

---On May 22, 2020, the Texas Supreme Court issued a decision reversing the Appeals Court decision. TSC declared that even though TEC is an hierarchical church, neutral principles required very strict construction of state laws. TSC found that the breakaways had followed state laws, had separated legally from TEC, and had retained all rights of the old diocese. In this view, state law trumped hierarchy. This is the decision that TEC is now asking SCOTUS to review.

TEC'S PETITION FOR CERT:    

TEC's October 19 petition to SCOTUS for cert is really a 37-page argument against the 1979 Jones v. Wolf decision. It calls on the Court to reconsider the entire decision which has led to a great deal of confusion and disagreement about how civil courts can address issues from churches.

Find the October 19 petition here .

The basic issue at hand is the First Amendment of the United States Constitution that established the principle of the separation of church and state. The Jones decision, however, allowed courts to rule on church issues of property as long as they followed "neutral principles," that is, only property laws neutrally. The basic problem with this has always been that there was no established boundary between the First Amendment and courts' rights to intervene in church business. And so, since 1979, court decisions have been all over the place, in other words, Jones has produced only chaos across the country. For instance, among the five cases where dioceses voted to leave the Episcopal Church, the Church has won in three instances while the secessionists have won in two although every one claimed to act under "neutral principles." How can the same guiding principle result in diametrically opposed outcomes? There is an inherent contradiction in the Jones decision that the civil court can respect a church's rights while ruling on a church's rights. Either the church and state are separate, or they are not. Jones was trying to have it both ways, an impossibility. This is the issue TEC is asking SCOTUS to take up anew.

The TEC lawyer advanced three primary reasons for SCOTUS to accept this case. 

1-To resolve the issue of the effectiveness of trust provisions for churches. 

As the lawyers pointed out in detail, courts all around the U.S. have varied greatly in how to interpret church-related trusts, roughly dividing on loose construction and strict construction. Loose leans to the church's rights to set up a trust itself. Strict leans to state law regardless of the church's trust. Texas held to a very strict construction holding that the Dennis Canon could be revoked because it did not have a provision preventing it from being revoked. Thus, it had virtually no standing under state law.

2-To resolve the issue of whether courts must defer to a church in determining who represents the church's subordinate bodies.

In Texas, the District Court and the Appeals Court had recognized TEC as hierarchical and therefore entitled to decide its local bodies. However, the Texas Supreme Court had declared that the breakaway side was the legal continuation of the Episcopal Diocese since, under state law, it had separated from the Episcopal Church.

In South Carolina, the state supreme court had ruled that the TEC diocese was the legal heir of the pre-schism diocese. This was reversed by the circuit court whose order is now on appeal with SCSC.

The issue of whether an hierarchical church has the right to determine its own structure goes right to the heart of the First Amendment.

3-To resolve the nature of the "neutral principles" rule established by the Jones decision.

Chaos among court decisions demands that SCOTUS define the exact boundaries between neutral principles and rights of religious institutions. The problem is that there is really no such thing as "neutral" decisions. Once a court moves into a dispute within a church it moves to one side by nature. Resolving a property dispute involves taking sides however one may want to rationalize it. Otherwise, the court would have to be Solomon splitting the baby 50/50. The First Amendment precludes the civic state from interfering in the internal affairs of a church. Yet, under Jones, neutral principles has been allowed to give the civic state a great deal of power over the internal affairs of a church. Only SCOTUS can resolve the meaning of the First Amendment. Given what has happened in the wake of Jones, this is something the nation desperately needs.

In my view, all of this goes back to the freedom of religion. The Episcopal Church must have the freedom to govern itself. This is guaranteed by the First Amendment. The Episcopal Church is an hierarchical institution. In fact, this has been established in federal law. On Sept. 19, 2019, federal judge Richard Gergel, in Charleston, ruled that the Episcopal Church was hierarchical. While his decision is on appeal, it is in effect, stays having been denied by Gergel and the federal appeals court.

It seems to me the Ft. Worth case brings to a point the disputes going on in many churches during the present culture war. The first phrase of the First Amendment is the most fundamental part of our civil liberties. It is time for the highest court in the land to tell us exactly what that Amendment means to us today. Giving cert to TEC would go a long way toward constructing a more perfect union.

Will SCOTUS grant cert? At first glance, probably not. It refused cert in 2014. Time and again it has avoided touching cases from the Episcopal Church. It does not get involved in state law, only in issues that directly affect the U.S. Constitution. On second glance, maybe they will grant cert, if they see that the most fundamental right in the Bill of Rights is in question. I say it is time for SCOTUS to tell us exactly what freedom of religion means. What constitutional issue could be more important than this?

What effect might all of this have on the litigation on SC? I doubt it will have much effect in SC. The issue before the SCSC now is whether to uphold or overturn the Dickson decision. If it upholds, the breakaways keep the 29 parishes and the Camp. If it overturns, TEC keeps the 29 and the Camp. Anyway, if SCOTUS grants cert, a decision would probably not be forthcoming until next summer. Of course, the last time SCSC had the church case, it took two years to issue a decision. So, who knows how long it may take this time?

Tired, exhausted, fatigued with all this? I expect we all are. Yet, it goes on and we must keep up with it. It will be over one day but God only knows when that will be. 

This legal war in SC has been going on for nearly nearly eight years. Think about that. What a shame. What a scandal. And all this to keep some people from enjoying the same human rights as others...  

 

NOTES,  23 NOVEMBER 2020

Welcome, blog reader, on Monday, November 23, 2020. It is time for our weekly check-in on the crises of the day.

PANDEMIC. 

There is good news and bad news. First, the good news. We are on the cusp of having vaccines to prevent the infection of the coronavirus. Four pharmaceutical companies are about to deliver vaccines to the public in the next few months. The first, Pfizer, has applied for emergency approval from the FDA and expects to deliver the first doses next month. The deliveries will be prioritized with those most in danger (health care personnel) to be first in line. Most of us will be able to get the vaccine within six months. This is cause for great rejoicing.

The bad news is the pandemic is soaring continually to new high levels. Infections are out of control in many countries, as the United States. The latest numbers are alarming and staggering. According to our usual source, Worldometers, there were 4,155,562 new cases reported in the world last week, November 16-23. This is an 8% increase, the same rate as the earlier week. There were 69,214 deaths, a rising rate of 5%, the same as the previous week. Reported total cases stand at 59,096,027 and deaths at 1,395,528.

America continues to be the epicenter of the pandemic as it has been since the spring. Last week, the U.S. reported 12,590,220 cases, up 1,223,006, or 11%. This is record spread, up from the 10% of the earlier week. Deaths in the U.S. shot up from 8,133 the week before to 10,810 last week. As anyone who pays attention to the news knows, hospitalizations are out of control in many places in America. The health care system is under tremendous strain; and this will only get worse in the next few months as winter sets in. All signs indicate we are approaching the darkest hour of the COVID-19 pandemic. God help us.

The numbers in our local states are equally grim. South Carolina reported 10,788 new cases last week, up 6%. The previous week had seen 9,819 new cases, up 5%. The state also reported 171 deaths last week, up from the 76 of the earlier week. In all, 4,283 deaths have been reported form SC. The New York Times is reporting that cases in SC escalated 41% in the last 14 days while deaths shot up 71% in this period. Clearly, the plague is out of control in SC.

Charleston County is no exception. It reported 654 new cases last week, up from the 628 of the earlier week. The county is now listing 19,235 cases. It is also listing 4 deaths last week, for a total of 292.

The figures for Alabama are equally alarming. This state reported 14,684 new cases last week, up from the 14,135 of the previous week. AL reported 209 deaths last week, up from the 164 of the earlier week. This state has a total of 3,457 deaths from the pandemic.

In sum, the tunnel of the pandemic is ever darkening but there a light at the end of the tunnel. The next few months will be terrible. There will be sickness and death all around us. This will be bearable because we know a vaccine will be on hand soon. The cavalry is on the way. We must do the best we can until it arrives.

LITIGATION.

In SC, we are awaiting the reply brief of the Anglican diocese of SC in the South Carolina Supreme Court. Once they submit their written arguments, the SCSC will decide whether to hold a hearing, or go straight to a written decision. Both of these should happen in the next couple of months.

There is major news from Texas. The Episcopal Church and its diocese of Fort Worth have applied in the United States Supreme Court for "cert," that is, for SCOTUS to take an appeal of the Texas Supreme Court ruling that went entirely in favor of the breakaway contingent of Ft. Worth. I am now studying the TEC brief and will report back here soon. 

POLITICAL.

This is one crisis that has improved dramatically. The bottom line is that the American people reaffirmed their devotion to the democratic republic. They repudiated the attempt of a president and his party to subvert the Great Democratic Revolution. In the big picture this is tremendously important. It means the democratic revolution has prevailed over the counter-revolution. 

It does not mean, however, the crushing of the anti-democratic forces. They are still strong. After all, 47% of the voters chose Trump even after 4 years of having him in power. 

In my view, the clash between the revolution and the counter-revolution in contemporary America boils down to race. Just look at the results of the election. Sixty percent of white voters chose Trump while the vast majority of non-white voters opted for Biden. America is dangerously polarized along lines of race. And, we people who live in SC and AL know this better than most Americans. This is one reason why I was encouraged to see the Episcopal diocese of SC set up the Diocesan Commission on Racial Justice and Reconciliation. The Anglican diocese of SC has also shown signs of working for racial justice, a welcomed turn.

Racism is America's original sin and until we get a grasp on this, we will remain dangerously divided as a nation-state. In my opinion, Trump's basic appeal was to the white people who felt threatened by the rise of the non-whites in society. In another generation, whites will be the minority in America. As evidenced by the Trump phenomenon, white male power structures will not give up easily. I fear we are in for much more strife as reality sets in on those who feel under siege in what used to be the white man's country. But, this is a discussion for another day.

Crises are swirling all around us. In some ways they are getting worse, in some ways better. Among it all, I see tremendously encouraging signs of relief ahead. A vaccine is at hand. America reaffirmed democracy. Good people are working to make a better world. It is happening all around us if we only look. Besides, this is a week to give thanks. We have much for which to be thankful. I will count my blessings as I hope you will too. 

My Thanksgiving Day will be quiet, just with my little family at home, but it will be no less meaningful. Life goes on. For instance, my local church serves a Thanksgiving meal to any and all. This year, parishioners are preparing 700 meals, all take-out and home-delivered. For a quarter of a century, St. Luke's has done this winning for itself the reputation of service to the community.

My best wishes to you and yours at this time of thanksgiving. Remember, we are here for the living of this hour. Peace.  

 

BUDGET WOES OF THE ANGLICAN DIOCESE OF SOUTH CAROLINA

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Rakes in $121,000 in taxpayers' money

The Anglican Diocese of South Carolina recently released its 2020 budget. Find it here . It reveals a worsening financial state of the diocese. It also shows the diocese received $121,000 from the federal government under the PPP, earlier this year. Individual parishes of ADSC may have received PPP "loans" too but I have no data about this. The PPP grants were given to businesses (and churches) to keep personnel on the payroll for a specified amount of time. If the recipient adhered to the conditions, the "loan" became a gift---from the American taxpayers. Since churches were allowed to apply under the program, a great many did. Some Episcopal dioceses and parishes applied, and got the loans (I do not have the data on the Episcopal diocese of South Carolina). Media outlets have reported that by far the greatest church recipient of PPP was the Roman Catholic church which raked in a mind-boggling $1.4b under the program.

Even with the $121,000 load of the people's money, the ADSC has budgetary troubles. The fourth iteration of the 2020 Budget shows that from 2019 to 2020 Income/Expenses dropped from $2,551,000 to 2,250,113. This is a decline of $300,887, or -12%. If we remove the $121,000 in income from the federal government, we find a drop of $421,887, or -17%.

The expenses of the ADSC are overwhelmingly the results of the schism and the stipends of the diocesan officers. The estimated legal fees in the 2020 budget are listed as $566,350. This is by far the largest single expense. It amounts to 25% of the budget. And, this is just an estimate. The actual figure could be higher, especially considering active cases in both major federal and state courts. The next highest expense is payment to the Anglican Church in North America. ADSC is handing over $181,151 to ACNA. This is more than three times as much as the pre-schism paid to the Episcopal Church in one year. Thus, a third of the ADSC budget goes to aftereffects of the 2012 schism.

How much has ADSC spent on legal costs? No one knows for sure since the details are never revealed. However, if we estimate a conservative figure of $500,000/yr. this would come to $4m since the schism. The individual parishes are paying their lawyers separately. If they are paying, collectively, the same, this would mean the people of the ADSC have paid $8m in legal fees since the schism of 2012. I expect this is a realistic figure. Whether this is money wisely spent is another issue.

Next to the costs of the schism, the budget is top-heavy with salaries for the administrators: the bishop, the canon to the ordinary, the communications director, and the part-time "Canon Theologian." Showing how dire things are, Bishop Lawrence actually took a cut in salary, for the first time ever. His compensation package dropped from $205,023 in 2019 to $180,662 in 2020. This is a cut of 12%. However, if we figure in his free housing, his income remains remarkably high. The bishop's residence, in pricey downtown Charleston, (that legally belongs to the Episcopal diocese) is worth around $2m. This would mean an annual rent of $120,000 ($10,000/mo.). All in all, Lawrence is enjoying nearly a third of a million dollars in income value yearly. Moreover, Lawrence is eligible to receive handsome payments from the Episcopal [!] Church retirement fund and Social Security. You do the math and draw your own conclusions about Lawrence's income.

The next two highest salaries in the diocesan administration did not take cuts. The Rev. Jim Lewis, the Canon to the Ordinary, keeps a nice pay package at $123,056/yr. Joy Hunter, the Director of Communications gets $81,683 in her compensation. Then there is the part-time "Canon Theologian." No one is quite sure what he does for his income, but he took a 17% cut, from $39,027 in 2019 to $32,336 in 2020. The fact that the bishop and the canon theologian would take such significant cuts is clear indication of financial troubles in their institution.

To be sure, this year is not an ordinary one and we should not make too much of budgets right now. Every church I know has troubles in this time of COVID-19. Everyone is struggling to match income and outgo. Nevertheless, it is true that the trajectory of the Anglican diocese since the schism is downward, in both membership and finances. I expect this will only get worse. Chances are it will lose in both state and federal courts and that will mean it will have to turn over the diocesan assets to the Episcopal diocese and the 29 local parishes to the Episcopal bishop. Then, what happens to this experiment in religious differentiation is anyone's guess. I think we can safely assume its future does not look good.

_______________________________

Now, back to my garden that is in its autumnal glory. Here are some of the sights these days:

Dwarf Burford Holly (Ilex cornuta 'Burfordii Nana'). The holly family is one of the best for ornamental horticulture. I have more than a dozen forms of hollies and all are flourishing. This one is loaded with red berries. I share cuttings with my neighbors for holiday decorations.

Paper Bush (Edgeworthia chrysantha). An unusual, and much under-used, garden deciduous shrub. As the leaves drop, the bell shaped flowers remain making it one of the few deciduous shrubs to bloom throughout winter. In ancient China, the bark was used for making paper, hence the name.

Winter's Fire Ice Angels Camellia. This fully mature shrub, at 6', is a prolific bloomer. Since we have not had a killing frost yet, this bush is doing its best to show off its countless pink and white flowers.

 

NOTES,  16 NOVEMBER 2020

Greetings, blog reader, on Monday, November 16, 2020. It is time for our weekly check-in with the crises we have been following for months now.

PANDEMIC. As anyone who pays attention to the news media knows, there is an unprecedented surge of COVID-19 going on now in the fall. Almost all of the data about the pandemic are skyrocketing. We are in the third and most serious phase of spread of this highly contagious and deadly virus. All signs indicate this will only get worse as winter sets in.

According to our usual source, Worldometers, figures are way up in the last week. From Nov. 9 to 16, there were 4,111,478 new cases in the world, for a total of 54,940,465. This is by far the biggest jump in the course of the pandemic. The rising rate is 8%, the same as the earlier week. Deaths in the world are also surging, up 67,712 last week for a total of 1,326,314. This is a rising rate of 5%, up from the 4% of the previous week. Of course, the spread in the world is uneven, much stronger in some places than in others.

The United States continues to be the epicenter of the world's pandemic. For the first time, the U.S. reported more than a million new cases in one week, 1,078,734 to be exact. This is a rising rate of 10%, well above the 8% of the earlier week. The U.S. is reporting a total of 11,367,214 cases of COVID-19, all this year. Deaths in the U.S. are also surging. Last week, 8,133 Americans died of the plague for a total of 251,901. This is a rate of 3%, or more than a thousand deaths a day.

South Carolina is no exception to the rule. New cases in SC jumped dramatically from 6,771 in the earlier week to 9,819 last week. SC is reporting a total of 195,507 cases. As for deaths, SC reported 76 last week for a total of 4,112, a rising rate of 2%, the same as the earlier week.

Charleston County also reported a jump in new cases, 628 last week, up from the 473 of the week earlier. The county is listing a total of 18,581 cases. One hopeful sign is that deaths fell from 6 the earlier week to 3 last week. The county is now listing a total of 288 deaths from COVID-19. 

The same surge is going on in Alabama. There, a whopping 14,135 new cases were reported last week, up from the 8,795 of the previous week. Infections are spreading in AL at a rate of 7%, up from the 5% of the earlier week. Deaths in AL are also up. There were 164 reported last week, for a total of 3,248. This is a 5% increase, up from the 4% of the earlier week.

Clearly, the pandemic is surging in the world, the U.S. , and our local areas. There is no national plan to stop the spread. Here and there, some local governments are enforcing some restrictions but so far these have not stopped the spread of the disease. Experts are telling us this situation this will only get worse in the new few months. A vaccine is about to appear but will not be widely available for months to come. Until then, we are really on our own individually to deal with this health emergency the best way we can.

LITIGATION. In yesterday's blog posting, I discussed the Episcopal Church side's brief to the SC Supreme Court. The church lawyers laid out a detailed, strong argument against the Dickson ruling of June 19. They are asking the court to overturn the Dickson decision and to implement the SCSC ruling of Aug. 2, 2017 that declared the Episcopal Church ownership of the 28 (29) parishes and the Camp. 

Next, we can probably anticipate a response brief from the breakaway side. Those lawyers will certainly argue that the Dickson order must be maintained. Dickson ruled against Episcopal Church ownership of the local properties.

After that, we can expect a response from the SC Supreme Court. They may hold a hearing to listen to the oral arguments of both sides, or they may go straightaway to a written decision. Anyhow, we have probably months more of this before he SCSC issues its judgment on the Dickson order.

POLITICAL CRISIS. This is one crisis that has improved dramatically. President Trump, who had challenged all the norms of our constitutional and democratic republic was soundly rejected by the American people. He lost the clear majority of the people and of the Electoral College. Moreover, his threat to challenge the legitimacy of the election fizzled with barely a spark. His attempt at a coup d'état fell flat. Virtually every challenge in court to the election was frivolous and easily dismissed. The courts will not intervene as he had hoped; the states will abide by the rules of voting in the Electoral College. It is clear now that the Electoral College will vote on December 14 to elect Biden as president thus ending any threat to the legitimacy of the election. Trump will not concede his defeat but that will not matter after Jan. 20, 2021 when he will go down in history as the worse American president ever.

However, a word of caution. The democratic republic survived this time. It dodged the bullet on the most serious threat to it since the Civil War. Even so, 72m people voted for Trump and therefore for his attempt to steer the country toward anti-democratic minority rule by non-traditional means. He won 47% of the vote, shockingly close to half. If Trump had been more competent, focused, and disciplined, he may well have won reelection and a free hand to ramp up his extra-constitutional rule. The next Trump who comes along to subvert the constitution and attempt an autocratic, minority rule may well succeed with a different approach. This red flag is the most serious outcome of the recent election. Nearly half the American voters validated an attempt to veer toward fascism. The democratic republic survived this time but it may not in the future.

So, dear reader, we are in a hard time. We are burdened with crisis on crisis. As a student of history, I find reassurance in going back to the recent periods of greatest crisis to see how people responded to the challenges of the day and how good and great results came from these crises. The Great Depression/Second World War was the greatest challenge to America, at least since the Civil War. They were terrible, awful times of suffering and death. Yet, they were followed by the greatest period of national flowering ever. The second half of the Twentieth Century saw the spectacular fulfillment of the American idea, in my opinion, the greatest democratic republic in human history. So, do not assume this dark hour will last and will bring us down. History tells us it will not. It may be hard to see in the darkness we have now, but I believe we will survive and even thrive. Peace.

_____________________________________

Meanwhile, if we take a break and walk about my garden this morning we find: 

Japanese Fatsia (Fatsia japonica). This is the bloom, or the flower, of Fatsia. I have had this plant a dozen years. This is the first year it has bloomed. Fatsia is a tropical plant that will thrive outdoors in the south with some protection. This one is perfectly happy in this spot.

Professor Sargent camellia, one of the best early flowering japonica camellias. Nothing perks up cold weather days as camellia.

Japanese Silver Grass (Miscanthus sinensis) in front of Burning Bush and Grancy Grey Beard. Ornamental grasses are at their showiest in the autumn.

EPISCOPAL CHURCH PRESENTS ITS CASE TO THE SOUTH CAROLINA SUPREME COURT

Lawyers for the Episcopal Church and its diocese of South Carolina presented their written arguments to the South Carolina Supreme Court on November 12, 2020. The Church side is appealing Circuit Court Judge Edgar Dickson's Order of June 19, 2020. In August, the SCSC agreed to hear the appeal.

A brief recap of this case:

1-On Feb. 5, 2015, circuit court judge Diane Goodstein issued an order denying the interest of the Episcopal Church in the local and diocesan properties of the old (pre-schism) diocese. The order found all in favor of the new (breakaway) diocese. 

2-On August 2, 2017, the SCSC issued a majority decision essentially reversing Goodstein and recognizing the Episcopal Church ownership of 28 (really 29) local parishes and the diocesan Camp, St. Christopher.

3-On Nov. 19, 2017, the SCSC sent its decision back down to the court of origin, the circuit court at Dorchester County, with a Remittitur to enforce the decision. (The SCSC denied a rehearing; the U.S. Supreme Court denied an appeal.)

4- On June 19, 2020, Judge Edgar Dickson, of the circuit court, issued an Order reversing the SCSC decision. He ruled that the Episcopal Church had no interest in the local properties, thus returning essentially to the Goodstein decision of 2015.

5-The Episcopal Church side appealed Dickson's Order to the SCSC where the case is now. The Brief of 12 November is the written argument in the appeal.

WHAT DOES THE EPISCOPAL CHURCH WANT THE SCSC TO DO NOW?

The Church side is asking the SCSC to overturn Dickson's Order of June 19, 2020 and to issue instructions to the circuit court to enact the SCSC decision of Aug. 2, 2017:

Appellants [TEC] request the Court vacate the Dickson Order and remand with instructions for the Circuit Court to take actions consistent with the Supreme Court Ruling that issued a declaration of rights in Appellants' favor, including granting the specific relied requested in Appellants' Petition for Execution and Petition for Accounting (p. 34).

If the SCSC agrees with TEC's request, the Episcopal Diocese of South Carolina will regain possession of the 29 parishes in question and the Camp.

WHAT ARGUMENTS DID THE CHURCH SIDE PRESENT IN ITS BRIEF?

Here are the main points that I found in the brief:

---Dickson's Order sought to overturn the SCSC decision.

---Dickson's Order sought to reinstate the Goodstein Order (in place of the SCSC decision).

---The majority of the justices of the SCSC voted to reverse Goodstein and to recognize TEC ownership of 29 of the 36 parishes in question as well as Camp St. Christopher.

---The SCSC decision is the "law of the case." The law is not open to reinterpretation. Yet, Judge Dickson followed the opinion of the dissenting justices that was not the law of the case.

---Dickson's Order sought to nullify the SCSC decision:

Rather than following and enforcing the final judgment, the Circuit Court instead nullified this Court's ruling (p. 21).

---The circuit court (Dickson) did not have the authority to "clarify" (reinterpret) a SCSC decision, only to enforce it:

When this Court remitted the judgment, the Circuit Court obtained jurisdiction and authority only to enforce the judgment, not to clarify or to rehear it (p. 20).

The Court remitted this case to the Circuit Court...It did not remand the case with instructions. On remittitur, the "Circuit Court acquires jurisdiction to enforce the judgment and take any action consistent with the Supreme Court ruling (p. 22).

---The circuit court declared it had the right to discern the "intent" of the SCSC justices in disregard of the final decisions. In fact, supreme court decisions are always recognized by the result, not the intent. It is the vote that counts, not the reasoning that led to the vote. The process of making a decision is irrelevant to the force of the decision. The circuit court erred in following intent rather than result.

---The circuit court had no authority to reverse the SCSC decision on the properties. In the SCSC, four of the five justices ruled that the 29 parishes had acceded to the Dennis Canon. Yet, Dickson directly contradicted the court declaring that the 29 parishes had not acceded to the Dennis Canon. Dickson had no right to overrule a majority factual decision of the state supreme court. It was this error that led to Dickson's rejection of the SCSC's decision on the local properties. 

     If Dickson's Order is left to stand, it will create a dangerous precedent in which lower courts can overrule higher courts. This will strip the SCSC of its authority and lead to endless litigation without finality.

---"It is legally impossible" for the circuit court or the SCSC to reconsider this case. It has been settled as law:

The Supreme Court Ruling---the result of which was the majority's reversal of the Goodstein Order---is the law of the case and is not subject to further review by this Court (p. 20).

This brief sets out in detail all of the issues of this matter. It is compelling. This is an open and shut case of judicial authority. The SCSC has ruled and established the law on the ownership of the local properties. The circuit court had no right to reverse the higher court decision. Judge Dickson's Order apparently seeks to reinstate, essentially, Judge Goodstein's decision that awarded all to the disassociated diocese even though the state supreme court had explicitly reversed Goodstein's decision on the properties. I see two fundamental issues here. In one, the supreme court makes the law of the case. It is the highest court and its decisions are not subject to alteration. It is a question of law. In another, the structure of the judicial system is at stake. If lower courts are allowed to reverse higher court decisions, this will lead to anarchy in the entire court system. Litigation would go on forever and no finality would be possible. The issue is the integrity of the hierarchy of the state court system. 

Will the SCSC overturn the Dickson order and order enforcement of its Aug. 2, 2017 decision? On the face of it, this should be a no-brainer. Of course the highest court should defend itself and maintain the necessary integrity of the court system. Of course it should not allow a lowly circuit judge to reverse a decision of the supreme court. This is just common sense.

However, matters may not be quite that simple today. One should keep in mind the big picture of the church case. This is an important part of the culture war that has been going on in America for a half-century. From the start of the Great Democratic Revolution after the Second World War, the Episcopal Church enthusiastically engaged to promote the equality and inclusion of all people in church and in society. It championed blacks, women, homosexuals and others who had been discriminated against and excluded. However, the majorities in five dioceses voted to reject this democratic revolution and to leave the Church. South Carolina was the fifth and last. After the schism of 2012, the breakaway faction explicitly rejected equal rights for homosexual persons. It also denied to women offices of authority over men. Homophobia and sexism are parts of the backlash against the Great Democratic Revolution in which the Episcopal Church played, and still plays, a significant part. Thus, what is happening in the litigation now is very much a part of the culture war in America. 

As everyone knows, South Carolina is a highly conservative state. Just look at the election results. Political elements associated with the reactionary side of the culture war won across the board in South Carolina. On the presidential, senatorial, and representative levels, candidates associated with the democratic revolution side were soundly defeated by the voters of South Carolina. The majority of the people of this state have made their feelings about change known clearly.

So, what the SCSC will do now boils down to whether the justices see the Church case as an issue of law or the culture war. If they see it primarily as a matter of law, they will have to defend the SCSC decision and order the return of the properties to the Episcopal Church. On the other hand, if they see the Church fight primarily as a matter of culture, they may bend so far to conservatism that they find some construction to allow the Goodstein/Dickson position to prevail as a way of weakening the revolutionary forces of the culture war in the state of South Carolina.

As of now, we have no way to know which way the SCSC will move. We do know that two of the five justices who wrote the 2107 decision are no longer on the court, Pleicones and Toal. We also know that one of five justices, Hearn, has been recused from the case. Moreover, we know that two new justices have joined the court since the 2017 decision and one of them, Few, has been married in St. Philip's, of Charleston, after permission of the bishop of one side in this case. 

Thus, there are four active justices handling this case. It is possible the court would bring in an "acting justice" to become the fifth vote (I have no knowledge that they have done this). If it winds up that there are four votes, the Church side will need three or four votes to overturn Dickson. A tie vote, 2-2, would mean Dickson's Order would stand. If there is a fifth, an acting justice, the Church would still need three or more votes of the five to overturn Dickson.

So, what should be an open and shut case is not that simple. There is a good deal involved in how the SCSC will make its decision and not all of it is favorable to the Episcopal Church.

Still, after all is said, I cannot see a state supreme court rejecting one of its own final decisions and elevating lower judges to judicial supremacy. It just does not make common sense. I for one will be very surprised if the SCSC rules in favor of Goodstein/Dickson and the breakaway side.

For more information and commentary on last week's brief see the Episcopal diocese's press release (with a link to the brief) here and scepiscopalians' article here . One may also find this posting helpful, "Circuit Judge Orders Nullification of State Supreme Court Decision," of 19 June. Find it here . My usual disclaimer: I am not a lawyer or legal expert and what I offer here is only opinion.

NOTES,  9 NOVEMBER 2020

It is Monday, November 9, 2020, and time to check in on the crises we have been following for months now. Two must get our attention today, the pandemic and the political.

PANDEMIC. The fall spike is here. The charts of new cases and deaths are skyrocketing, just as the experts said they would. The pandemic is running unchecked in the world, especially in America. 

Our usual source, Worldometers, shows that there are now more than 50m cases of COVID-19 in the world. As of this morning it is listing 50,828,987 cases. This is up 8% in the last week, November 2-9. This compares with the 9% rise of the prior week (Oct. 26-Nov. 2). As for deaths in the world, there were 53,451 last week, a rising rate of 4%, the same as the earlier week. As of today, 1,263,602 people have died of the plague in the world.

The United States has passed the 10m mark of cases. The U.S. is reporting 10,288,480 cases, up 8% last week, up from the 7% of the earlier week. As for deaths, the U.S. is reporting 243,768, a rising rate of 3%, the same as the earlier week. This means app. 1,000 American are dying of covid every day. The U.S. continues to have the most cases and most deaths, in this pandemic, than any country in the world. There is no respite in sight.

The disease also continues to run rampant in South Carolina although last week saw a slight decline in rates. In the past week, SC reported 6,771 new cases for a total of 185,688. This was a rising rate of 4%, down slightly from the 5% of the earlier week. As for deaths in SC, the state reported 90 last week for a total of 4,036, a rising rate of 2%, a significant improvement over the 4% of the previous week. 

Alabama is also reporting a slight improvement in rates. There, the state reported 8,795 new cases for a total of 203,687, a rising rate of 5%, down a bit from the 6% of the earlier week. As for deaths, AL reported 111 last week for a total of 3,084, a rate of 4%, the same as the earlier week.

In Charleston County, SC, the pandemic is spreading at about the same rate. It reported 473 new cases last week for a total of 17,953, a climbing rate of 3%, the same as the earlier week. As for deaths in the county, there were 6 last week for a total of 285. This is a rising rate of 2%, up slightly from the 1% of the previous week.

Bottom line, the pandemic is in its third, and greatest (so far) phase of expansion. New cases and deaths are increasingly at alarming rates. This is on track to worsen as winter sets in.

POLITICAL CRISIS. I have nothing new to say today on this subject. I have written about the election in several recent blog postings so I will skip it for now. Once I have had a chance to digest the news and reflect a bit, I will return with comments on the political crisis in America.

Autumn is a glorious season, particularly in areas where deciduous trees proliferate. I for one am getting out to enjoy the beauty of the season.

Take a ride down a country road and soak up the glory of the season. This road is in Calhoun County, Alabama, which is in the southern foothills of the Appalachian mountain chain.

My garden is an eclectic mix of tropical and non-tropical plants. Since we have not had a killing frost yet, these banana trees contrast nicely with the brilliant red of this maple tree.

Some of the camellias in my garden are in full bloom. This is Winter's Fire Ice Angels, an early and prolific flowering camellia japonica.

Finally, I suggest we all set aside the political issues for a moment and remember we are all one humanity. We were all called for the living of this hour. We have other issues to address, life and death, to be precise. May we all find the strength and courage to press on even in the face of a terrible pandemic. Peace.

BIDEN WINS, DECENCY WINS

Saturday, 10:35 a.m. The news networks have just declared Joe Biden the winner of the 2020 election for president. This is an historic moment in so many ways. 

Someone asked me this morning how the history books would look on this election. I said instantly, this was the election in which the American people awoke and chose decency over indecency. In other words, we listened to the better angels of our nature.

I think we the people made two big decisions last Tuesday. In one, we defended our democratic republic from a man who tried to be an unconstitutional autocrat. In the other, we rejected Trump's politics of personal destruction, a mixture of craziness, meanness and cruelty. We judged this to be unacceptably indecent. Both of these are great accomplishments and causes for great rejoicing.

Now comes the moment crying out for healing and reconciliation. The nation is badly and dangerously divided. Biden and all people of good will are now challenged to bring us together.

The Great Democratic Revolution has been vindicated and strengthened. The counter-revolution has suffered a serious defeat. It is still there but now with much less power to resist the tidal wave of history moving toward a more perfect union. This is a milestone marker for human rights.  

 

WINNER:  DEMOCRACY

6 November, 2020. 6:00 a.m. It is just a matter of time before the news outlets declare Biden the winner of the presidential election of 2020. As of this moment, there are four states to be determined, Arizona, Nevada, Pennsylvania, and Georgia. Biden is ahead in three and about to take the lead in the fourth (PA). It is all but certain that Biden will win a majority in the Electoral College and become the next president of the United States.

So, here is my take on what the election of 2020 means:

---The Great Democratic Revolution of the late 20th and early 21st centuries has prevailed over the challenge from the counter-revolution. The counter staged a fierce attack in the last four years but it is now clear that this attack was rejected by the American people.

---The American people arose in unprecedented numbers to defend democracy. Percentage wise, this election saw the largest turn out of voters in over a century. Biden is winning 4m votes more than Trump.

---The American people rejected the authoritarianism of Trump. 

---The faustian bargain between Trump and the Republican Party has collapsed. As it turns out, in retrospect, it was not very strong. In the past few days, Trump has railed out against democracy crying fraud and crime. Not a single Republican leader has agreed with him. The Republicans, seeing his defeat, have abandoned him. End of bargain.

---The coup d'état, or attempted coup, turned out to be insignificant. Trump and his aides have mounted numerous lawsuits to change the votes in their favor, but not a single suit has any chance of succeeding. They are all frivolous. As of this moment, it is clear that the courts will not determine the outcome of the election. This will not be a replay of 2000. There will be no coup.

---There was no "blue wave." In fact, the Republicans won a handful of seats from Dems in the House of Representatives (as Charleston). The Reps will keep a majority in the Senate. There was little change "down ballot" as in the state legislatures. This tells us the voters rejected Trump but not his allies, the Republican Party. We will now keep a two-party government.

---With a divided government (Dems=president and HR; Reps=Senate and SCOTUS), we can expect one of two paths, compromise or obstruction. In the 1980's and 1990's, the divided governments worked by compromise. In the last six years of Obama (2010-2016), the divided government turned into obstruction. Republicans blocked every important initiative of Obama and the Democrats. It remains to be seen whether the Republicans, now free of Trump's bullying and the faustian bargain, will turn to compromise or obstruction.

---One huge force demanding compromise is the common enemy of the hour, the coronavirus. It is forcing a unity on the nation. The first problem the new administration will confront is how to defeat, or mitigate, the pandemic.

A word to my family members and friends who voted for Trump and are now disappointed at the outcome of the election. Keep the big picture. We are the greatest democratic republic in the history of the world. We got this way by trusting each other to act in the best interest of the individual and of the common good. None of us is perfect. None of us has all the answers. We are at our best when we listen to each other, when we hear and value what others have to say. Democracy is not easy. It is the worst system of government ever invented except for all the rest. We are all in this together. Let us not allow fear of the other to poison the well.

Finally, as a student of history, I think we all need to go back to the big picture of the sweep of history in contemporary America. The soaring news of the hour is that The Great Democratic Revolution has prevailed over an upsurging challenge of anti-democratic reaction. This means America will go on evolving a more perfect union of human rights for all people in our highly diverse society. We just survived a very serious threat to the GDR in Trump. The important point is that the people stood up for democracy and rejected the reactionary threat to it. And, if one looks all around, one will see here and there how the GDR goes on in our daily lives. 

Just a couple of small examples of how democracy continues:  In one of the most conservative states in America, Alabama, local authorities have just approved a new charter school for LGBTQ students. It is to be a "safe space" for middle and high schoolers who are homosexual. Find an article about this here . In another example, in yet another of the most conservative places in America, Mississippi, voters approved 74%-26%, medicinal marijuana, even after most of the establishment of the state campaigned against it. The fact that the expansion of human rights is going on in the most conservative states in America is testament to the prevailing power of democracy in our lives. And, that is the big picture that we should take away from the election of 2020.

Democracy was the big winner of the election of 2020, and for that reason, I am celebrating today. Peace. 

 

NOTES,  4 NOVEMBER 2020

It is the morning after Election Day. Here are my observations and thoughts on where we stand now.

---There is no clear-cut winner in the presidential race. 

---Last night, President Trump declared victory, called for the end of vote counting and charged fraud on the other side.

---As of this moment, Biden has the easier chance of winning. Fox News now gives Biden 238 Electoral College votes. He is presently leading in Nevada (6), Wisconsin (10), and Michigan (16). If he wins these three, he would win a majority (270) in the Electoral College. 

---As of this moment, chances are the Republicans will retain a majority of seats in the Senate.

What to expect now? Some dozen states are too close to call. They will be announcing their votes in the next day or two. We will know then who is likely to win in the Electoral College.

We can also expect thousands of Republican lawyers to continue to challenge ballots in the close states in an effort to reduce the Democratic vote in these states. Trump has announced as his goal that the Supreme Court will determine the winner of the election. The court has a solid 6-3 conservative majority. He has placed three of the justices on the Court.

The Electoral College meets on 14 December when the electors cast their votes from the state capitols. This gives six and a half weeks for court challenges before then.

Thoughts on the significance of the election:

---America is deeply divided. The questions are, What are the divisions and what is causing the divisions?

---Public support for Trump and his allies has changed little in the past four years. Trump is losing the popular vote by about the same measure as he did four years ago. As of now, only one state has changed from one party to another (AZ from Rep. to Dem.).

---The counter-revolution is remarkably strong. In fact, it is almost as strong as the prevailing revolutionary movement. (The Great Democratic Revolution began after the Second World War. It transformed America along lines of justice, equality, and inclusion for blacks, women, the disabled, the old, the poor, and homosexuals. The counter-revolution was the backlash of elements that felt most threatened by the reforms: white working class men, white southerners, white evangelical Christians, and big money.)

---The pandemic failed to unite the American people enough to demand a change in the national leadership that had failed to protect the country from the deadly virus.

---The alliance between Trump and his allies is strong and resilient. The Republicans made a faustian bargain with Trump. They would support his authoritarianism; and he would roll back the hated democratic reforms (esp. abortion rights). This formed a two pronged attack on the American democratic republic, extra-constitutional presidential power and repeal of the resulting reforms of the GDR. The vote yesterday suggests nearly half the American people support the faustian bargain.

---If Trump wins reelection, the faustian bargain will fundamentally change the American democratic republic into an anti-democratic authoritarian regime supported by a minority of the people. Trump will have four years of unrestrained rule. 

---If Biden wins the election, and the Republicans keep a majority in the Senate, autocracy will be averted but the Republicans in the Senate, under the iron grip of McConnell, will block any new democratic reform. There will be stalemate such as in the last six years of President Obama's administration. The faustian bargain will be defeated but the counter-revolutionaries will have great power in the Senate as well as the federal courts which Republicans have packed with conservative (counter-revolutionary) judges/justices.

We are now moving into a difficult and dangerous period of American history. The counter-revolutionaries have already launched a coup d'état to overthrow the legal and legitimate election. The next six weeks will show how how far they are willing to go to make this coup. I expect we can expect anything.