ONE WEEK TO GO
Greetings, blog reader. Today is Wednesday, the First day of December 2021. One week from today, on Wednesday, December 8, 2021, the South Carolina Supreme Court is scheduled to hold a hearing on the church case. The five justices will "hear" the arguments of the lawyers on both sides. Since time is limited, one hour, much of it will be taken up by questions from the justices. According to the Court's posted rules, each party may have two lawyers in the courtroom. The Episcopal side has listed three lawyers since there are two parties on that side, the national church and the local diocese. The public will not be allowed in the courtroom. There will be a live-stream of the hearing for all to watch. I expect to watch and post a report here as soon as possible after the hearing.
We know there will be an Acting Justice to take the place of recused Justice Kaye Hearn. However, the court will not post the name of the AJ before the hearing. As soon as the camera turns on, we will all know the identity of the AJ. I will relay it on this blog as soon as the hearing begins.
The matter before the court is simple: whether to affirm or reverse Judge Edgar Dickson's Order of 2019 which awarded all local properties in question to the secessionist side. The Episcopal side is appealing Dickson's Order. Dickson reversed most of the South Carolina Supreme Court decision of August 2, 2017, which had awarded 29 of the 36 parishes in question, plus Camp St. Christopher, to the Episcopal side (he recognized and enacted one of the three majority decisions in the SCSC opinion---the one giving seven parishes the properties). So, the question boils down to whose decision should stand as final, the state supreme court's or the circuit court's. This should be a no-brainer.
After nearly nine years (since Jan. 4, 2013) in court, we are nearing the expected end of the litigation. In effect, the SCSC is about to decide at long last who gets the bulk of the local properties and the Camp, the secessionist diocese or the Episcopal Church. The federal court has already decided that the Episcopal Church is hierarchical and the Episcopal diocese is the one and only true heir of the pre-schism diocese (this is now on appeal but not on stay). The fed court even issued an Injunction forbidding the schismatics from claiming in any way to be the historic diocese, something the Episcopal side had to enforce twice following the breakaways' intransigence. To say all of this twisted litigation has been contentious would be an understatement.
My advice to all of us, on the cusp of what will probably be the deciding judgment of the court on the property, is to listen carefully to the questions the justices ask next Wednesday. They will indicate the thinking and direction of the justices as they contemplate this appeal.
I have laid out the issues as I understand them as well as I can in earlier blog posts. I am repeating two that may be helpful to review, the first from September 24, 2021, and the other from May 13, 2021.
Originally posted on September 24, 2021:
BEFORE THE SOUTH CAROLINA SUPREME COURT, AGAIN
The Episcopal Church case is back before the South Carolina Supreme Court. The justices have scheduled a hearing at 9:30 a.m. on Wednesday, 8 December 2021, in the courtroom of the Supreme Court building, in Columbia. I assume it will be livestreamed. I plan to be in the courtroom in person if at all possible.
The issue before the SCSC now is the appeal brought by the Episcopal Church side of Judge Edgar Dickson's order of 19 June 2020. Dickson ruled that the 29 parishes in question, not the Episcopal Church, own their own property, and the Anglican diocese owns Camp St. Christopher, not the Episcopal diocese. On these essential points, Dickson reversed the SC Supreme Court decision of August 2, 2017. The SCSC had ruled that the Episcopal Church owned the local properties and the Episcopal diocese owned the Camp.
The crux of the matter was the Dennis Canon. The SCSC ruled that the 29 had acceded to the Canon. Judge Dickson ruled that the 29 had not acceded to the Canon.
The hearing will allow the justices to hear the presentations of both sides and to ask questions of the lawyers. One may assume that Alan Runyan will lead the team for the secessionist side as he has done from day one. However, the lawyer who made the case for the Episcopal Church side in the hearing of 2015 will not do the same. Blake Hewitt is now a justice on the SC Court of Appeals. To my knowledge, the Church side has not announced the lawyers who will speak in the hearing.
The long legal war of the schism is now in the ninth inning. It is approaching the end. What the SCSC rules on TEC's appeal of Dickson's order will almost certainly be the end of the game. If they uphold the Dickson order, the breakaways keep the parish properties and the Camp. If they uphold the SCSC decision of 2017 and deny Dickson, the Episcopal Church diocese gets the 29 parishes and the Camp. It is as simple, and important, as that. It will be one or the other, for keeps.
The losing side could appeal the SCSC decision to the U.S. Supreme Court but the chance they would take it is between nil and none. So, whatever the SCSC decides next will close the book. This is what makes this hearing so important. It is the last chance both sides have to make their best cases. They had better be well prepared.
I do not know how to give my thoughts on the situation before the SCSC now any better than I did in the blog piece below that I originally posted on May 13, 2021. It think it is worthwhile to repeat:
THE CRISIS BEFORE
THE SOUTH CAROLINA SUPREME COURT
The crisis of the hour is in the hands of the justices of the South Carolina Supreme Court. What they decide will seal the fate of the schism in South Carolina. After eight and a half years of bruising legal warfare, the judicial settlement is approaching. Which side will finally take possession of the 29 parishes and the Camp? While we wait, we have a good opportunity to review the state of the litigation between the old Church diocese (EDSC) and the new breakaway diocese (ADSC).
The South Carolina Supreme Court, Columbia.
First, the salient facts on how we reached this point:
---2017, Aug. 2. The South Carolina Supreme Court issued a decision on the Church diocese's appeal of Judge Diane Goodstein's Order of Feb. 3, 2017. The SCSC ruling listed three majority decisions: 1) 8 (7) parishes own their own property, 2) the Episcopal Church owns 28 (29) of the 36 parishes in question, and 3)the Episcopal diocese owns Camp St. Christopher.
The SCSC majority decisions are enumerated 1, 2, 3. Click on for enlargement.
---Nov. 17. SCSC denied ADSC's request for a rehearing (on vote of 2-2).
---Nov. 17. SCSC issued a Remittitur to the Circuit Court for the implementation of its Aug. 2 decision.
---2018, June 11. The U.S. Supreme Court denied ADSC's petition for review of the SCSC Aug. 2 2017 decision (denial of cert).
---2019, Sept. 19. U.S. District Court judge in Charleston, Richard Gergel, issued an Order recognizing the Episcopal Church as an hierarchical institution and the Church diocese as the only legal heir of the old diocese. He also issued an injunction banning the breakaway faction from claiming in any way to be the historic diocese. This was the first federal court decision on the question of the hierarchical nature of the Episcopal Church.
On Dec. 18, 2019, Gergel denied ADSC's request for a stay of his Order. On Jan. 14, 2020, the U.S. Court of Appeals denied ADSC's request for a stay of the Order. Thus, Gergel's Order remains in effect.
---2020, June 19. Circuit Court Edgar Dickson issued an Order reversing the SCSC decision on the 29 parishes and the Camp. He declared the Episcopal Church had no interest in the parishes on the grounds they had not acceded to the Dennis Canon. The majority of justices of SCSC had ruled that the 29 had in fact acceded to the Dennis Canon.
---Aug. 8. The SCSC agreed to take EDSC's appeal of Dickson's Order.
---Oct. 29. The U.S. Court of Appeals agreed to stay ADSC's appeal of Gergel's decision pending a ruling from the SCSC.
---Nov. 12, 2020 to Mar. 4, 2021, the EDSC and ADSC filed briefs with the SCSC. EDSC argued to overturn Dickson in favor of the SCSC decision. ADSC argued to sustain Dickson's Order.
The basic question is, Which side is entitled to the ownership of the 29 parishes and the Camp? The opposing views are the SCSC decision of Aug. 2, 2017 favoring the TEC side, and the Circuit Court Order of June 19, 2020 favoring the breakaway faction.
The SC Supreme Court of today taking up this matter is not the same as the court that handed down the decision of 2017. Two justices who participated in 2017 have retired (Toal and Pleicones). Another justice from 2017 has recused herself from the case (Hearn). This leaves four active justices today. It is possible the court could bring in an "Acting Justice" to fill out the five seats, but there has been no word about this.
The two justices who sat on the 2017 bench still there are Chief Justice Donald Beatty and Justice John Kittredge.
Chief Justice Donald Beatty.
Beatty voted for the Church side while Kittredge voted against the Church. Both men agreed that the parishes had acceded to the Dennis Canon (four of the five justices agreed) but while Beatty said the parishes could not revoke their accessions, Kittredge held they could, and did, repeal their accessions to the Canon. Thus, while Beatty concluded that the Episcopal Church owned the 29 parishes and the Camp, Kittredge maintained the Church did not own them. Beatty joined with Pleicones and Hearn to form the majority on the court to rule in favor of the Episcopal Church. Kittredge and Toal formed the minority and issued dissenting opinions.
The two new justices who replaced Toal and Pleicones on the court are George C. James, Jr. and John Cannon Few.
James lives in Sumter where he is a lay leader in the Trinity United Methodist Church and active in numerous other local organizations. Find the SCSC blurb about him here .
Justice John Cannon Few.
Find the SCSC bio on Few here . One interesting point about Few is that he married Stephanie Yarborough in St. Philip's Church, in Charleston, in 2019. Since this was a remarriage on both parts, they had to go through a process to get permission of Bishop Lawrence for the marriage to take place in the church.
How these two new justices will interface with the whole matter before them now is something that cannot be known, at least not to a layperson as myself. I suppose it would take an expert in the state courts of SC to tell us how their past opinions might foreshadow their leanings on the question of the ownership of the church properties.
A highly important factor that must be considered here is the voting. Unless the court brings in a temporary "Acting Justice," to raise the number to five, there will be four justices to decide this appeal. A two-to-two tie would leave Dickson's Order in place (a majority has to vote to overturn). Since the matter before the SCSC is the appeal of Dickson's ruling, the vote will be whether to sustain his Order or to overturn it. To sustain it, the court must vote two or more of the four. To overturn it, the court must vote three or more of the four. Thus, the Church side has the harder challenge here. If we assume Beatty will vote for the Church and Kittredge will vote for the breakaways (as they did in 2017), the whole matter is in the hands of the two new, and unknown, justices. Everything rests on their opinions. The Church needs both of them. The breakaways need only one of them.
In my opinion, there are two ways of approaching the matter at hand, as a cultural issue and as a judicial issue. I think the settlement will depend on where the justices place the fundamental importance of this case.
As everyone knows (at least those who have read my history), the direct cause of the schism was the blessing of same-sex unions. When the Episcopal Church moved to this in 2012, the clerical leadership of the old diocese took the opportunity to lead the majority of the laity out of the diocese and the Episcopal Church. In short, the Episcopal Church championed equality for and inclusion of homosexuals persons in the life of the church. The reactionaries in the diocese of South Carolina opposed any acceptance of homosexuality and created the schism to prevent these reforms from applying to the majority of the old diocese. This was a part of a culture war that has been waging in America for the past seventy or so years. To be simplistic, the basic cultural issue is stark: for or against inclusion of non-celibate homosexuals in the life of the church. Since the issue of homosexuality sparked the schism with its ensuing litigation, the justices may choose to see the whole litigation as fundamental to the culture war. If so, their attitudes toward homosexuality will skew their opinions.
On the other hand, there is a very great issue here of jurisprudence. Under the long-established order of the court system, there is a hierarchy in the state courts topped by the supreme court. A ruling by the state supreme court is just that, supreme in the state. The 2017 opinion of the SCSC became the law of the land when the court denied a rehearing and the U.S. Supreme Court denied cert thus ending any possible appeal. Since it is the law of the land, it cannot be changed or re-litigated.
In my view the circuit court made two violations of the state judicial system. In one, it refused the Remittitur from the SCSC. I do not see how a lower court has the right to refuse an order from a higher court. In another, the circuit judge re-litigated the case and substituted his own finding that the 29 parishes had not acceded to the Dennis Canon in place of the state supreme court's finding that the 29 had acceded to the Dennis Canon. He directly contradicted the majority of the SCSC on the question of accession to the Dennis Canon. What right does a circuit judge have to replace a judgment of a higher court?
Thus, if the SCSC now upholds the Dickson Order, it will establish two landmark and severely dangerous precedents, that a lower court can refuse to accept a remit order from a higher court, and a lower judge can reject and replace a majority decision of a higher court.
If the SCSC allows Dickson's Order to stand, this will upend the entire state court system in South Carolina. Higher courts will no longer have superiority over the lower courts. No order of the state supreme court would have to be accepted and implemented. There would be never ending litigation thus destroying the entire concept of jurisprudence in the state. In short, no decision of a state court would ever be final. If so, what would be the purpose of having courts at all? No law could ever really be enforced.
Before they vote on the Dickson Order, the justices of the South Carolina Supreme Court ought to consider long and hard what the effects of their decision will be. In my view, upholding Dickson will be catastrophic to jurisprudence. It would establish an unbelievably dangerous precedent that could not be erased.
Let us bear in mind too that the United States was the first country in the world established on the principle that the civic state must be entirely separate from religious institutions. This concept of the separation of church and state was enshrined in the First Amendment of the Constitution. Over the years, it has served us Americans phenomenally well. Now, it is part and parcel of our American character.
No court has the right to interfere in the affairs of a religious institution. Moreover, the federal court has declared the Episcopal Church to be hierarchical. A court in South Carolina should not decide what the Episcopal Church can and cannot do in terms of its own internal structure. The Church has the right to decide its own rules. As an hierarchical body, the Episcopal Church has the right to enforce its own law, as the Dennis Canon. The civic state must respect this if it is to abide by the First Amendment.
The fundamental judicial issue here is freedom of religion. Every religious institution in America ought to be concerned about the possible infringement of the state on their rights. The Episcopal Church certainly is. The Diocese of South Carolina certainly is. Finally, the justices of the South Carolina Supreme Court ought to be equally concerned. We must maintain the separation of church and state. It is crucial to the future of freedom in America. This is the real crisis looming in the South Carolina Supreme Court.
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My usual disclaimer. I am neither a lawyer nor a legal expert. What I offer here is only opinion.
