AWAITING THE HEARING
OF 8 DECEMBER
The deck is cleared. We have had the bishops' elections and the Diocese of South Carolina's annual convention. Now we can turn all of our attention to the upcoming hearing in the South Carolina Supreme Court, set for 8 December 2021. To use a baseball analogy, this hearing is the bottom of the Ninth Inning. There have been eight very long innings as the lead has swung back and forth. All of us in the bleachers passed exhaustion long ago but even so still hang on tenterhooks for the last out.
Nine years is a long time indeed to wait for justice to arrive. Nevertheless, after all this time, we are finally approaching the end. What the justices decide after the hearing will end the ball game. They will declare the winner. There will be no appeal or re-take, no re-do game. Either the Episcopal Church or the secessionist contingent will gain the 29 parishes in question and Camp St. Christopher.
As we know, the public will not be allowed in the courtroom of the SCSC, in Columbia. However, there will be a live-stream of the hearing.
Since state law requires it, we can rest assured there will be an Acting Justice to take the place of recused Justice Kaye Hearn. We will learn the name of the AJ either when it is posted on the SCSC website or when the hearing begins. Having five justices to rule on the case means a tie vote is extremely unlikely. A 2-2 tie could happen if one justice abstains from judgment, something most unlikely in this case. Not having a tie vote works against the breakaways since a tie would uphold the Dickson Order of 2019. That Order gave all in question to the breakaway side. The Dickson Order can be reversed only by majority vote among the justices.
So, the hearing in the SCSC on Dec. 8 is to "hear" arguments against and for Dickson's Order. The Episcopal Church side appealed Dickson's decision to the SCSC which agreed to take it. The Church lawyers will speak first, followed by the breakaway attorneys, then a rebuttal from the Church side. Although this session is called a "hearing" it is likely to be more of a questioning. This is the only chance the justices have to ask questions directly, face-to-face, of the lawyers. In the hearing of 2015, the justices used much of the time asking questions, many lengthy. After the hearing, the justices will take their time before delivering their written opinion. After the last hearing, in 2015, the justices took 22 months to publish their opinion.
The issues facing the court now are simple. The Episcopal Church is asserting that the SCSC ruling of August 2, 2017 was definitive. By majority vote in 2017, the justices ruled that 28 (actually 29) of the 36 parishes in question belonged to the Episcopal Church along with Camp St. Christopher. Therefore, when Judge Dickson ruled that the 28 parishes and the Camp did not belong to the Episcopal Church he was wrong. He had no right, or justifiable reason, to reverse the SCSC decision. The TEC lawyers will argue that the justices should reverse Dickson and order the implementation of its 2017 decision. This would order the return of the 29 and the Camp to the Episcopal Church and its local diocese.
The lawyers of the breakaway side, that now calls itself the Anglican Diocese of South Carolina, will argue that the SCSC decision of 2017 was not definitive and that Dickson had every right to discern the meaning of the decision in its totality. They will say the parishes did not accede to the Dennis Canon and therefore the Episcopal Church had no trust rights to the properties.
The key point in all of this is the Dennis Canon. Did the 29 parishes accede to the Canon? In the 2017 decision, four of the five justices agreed that they had acceded to it. One, Kittredge, said they had the right to revoke their accessions; and they did at the moment of the schism. This left three of the five, a majority of the court, to rule that the Dennis Canon remained in effect and as result, the Episcopal Church became the owner of the local properties at the moment of the schism. The Canon held that if a congregation left the Episcopal Church it would forfeit ownership of the local property to the Episcopal Church. Thus, by majority opinion, the SCSC ruled in its 2017 decision that the Episcopal Church was the owner of the 29 local properties (7 were recognized as owning their properties).
The SCSC remitted its decision back down to the circuit court of origin for implementation in 2017. Instead, the judge, Dickson, ruled that the parishes had not acceded to the Dennis Canon and therefore remained the owners of their local properties while the Anglican diocese was the owner of the Camp.
Thus, Dickson directly contradicted the SC Supreme Court. The SCSC said the parishes acceded to the Dennis Canon. Dickson said the parishes did not accede to it.
Two of the justices from the 2017 decision will be in the hearing on Dec. 8, Beatty (chief justice), and Kittredge. Both of them had ruled in 2017 that the parishes in question had acceded to the Dennis Canon. Therefore, it will be fascinating to hear attorney Runyan tell Chief Justice Beatty and Justice Kittredge to their faces that they were wrong.
There are two ways to approach the hearing and the impending decision of the SC Supreme Court. One of them is overt, the other covert. One side will press one and the other side the other. The overt approach is to interpret the case as one of jurisprudence. The Episcopal lawyers will use this approach. The SCSC issued a majority opinion in 2017 that became the law of the land when the court refused a rehearing and the U.S. Supreme Court refused to take the case. The circuit judge was assigned the implementation of the decision. He had no right to retry the issues or to reverse the SCSC decision. Thus, the SCSC must protect its authority in the state judicial system by refuting Dickson's illegal action. If a circuit court is allowed to reject and replace a state supreme court decision, anarchy will ensue in the whole legal and judicial system of the state. No case will ever be closed. In the end, the state supreme court must defend its motto "Nil ultra" (nothing beyond).
The other approach, the covert one, is the one the breakaway side may pursue, but if they do they must do so privately. This is to make the church case a part of the contemporary American culture war. The direct cause of the schism of 2012 in South Carolina was equal rights and inclusion of non-celibate homosexuals in the life of the church. The Episcopal Church for years had advanced human rights for all marginalized and oppressed people including African Americans, women, and gays. When the Church adopted the blessing of same-sex unions, in 2012, the leaders of the Diocese of South Carolina resolved to break the diocese away from the national church. They created a schism. The breakaway group then adopted a Statement of Faith that condemned homosexuality and joined a new denomination that kept women in submission to men. The breakaways left the Episcopal Church explicitly to prevent gays and women from having equality and inclusion.
The culture war is a clash between the predominant historical movement in America towards a more democratic society and the backlash against this growing democratization. In history, a revolution always has a secondary counter-revolution. The Episcopal Church was a significant part of the revolution. The Anglican Diocese of South Carolina and its denomination the Anglican Church in North America are parts of the counter-revolution. Since the motivating factor for the schism was to prevent social change in the church, the Anglican diocese can interpret the battle at hand as the fight to keep gays and women in their pre-revolutionary roles. A victory for the Episcopal side in the church case will be a victory for social change. A victory for the Anglican side will be a victory for social reaction. Surely, behind the scenes the breakaway side are playing up the culture war in order to put pressure on the justices to favor the breakaway side.
Two factors support the breakaway side in this. One, all state judges and justices in South Carolina are elected for terms by the state legislature. In a sense, all of them have to be political, especially if they want re-election. The other factor is the well-known historic conservatism of the state of South Carolina. Even though the statue of John C. Calhoun was removed from Marion Square, his influence is far from gone. Conservatives have a monopoly on SC state government as they have had for many years now. Thus, the natural inclination in SC would be to lean to the breakaway side in order to bolster its fight in the culture war.
If the majority of the five justices want to prop up conservatism in the state, they will have a great challenge in the case at hand because the state supreme court has already ruled in favor of the Episcopal Church. If they vote to uphold Dickson, they will be voting to overturn their own court's decision which was the law of the land. If the majority does go down this route, I will be fascinated to see how they explain themselves. They cannot uphold the 2017 SCSC decision and Dickson at the same time. These two are are directly contradictory. It will have to be one or the other. Either the parishes adopted the Dennis Canon or they did not. There is no in-between.
So, it boils down to whether the court wants to defend established jurisprudence or to strike a blow to support the social reactionaries in the culture war. If they choose jurisprudence, the Episcopal Church will win. If they opt for the culture war, the Anglican side will win.
One more thought. Although the culture war is raging in America stronger than ever, the part opposing rights for gays has waned over the past few years. After the U.S. Supreme Court established same sex marriage in 2015, the anti-gay crusade moved far into the rear of the war. In the forefront now is the anti-abortion crusade (anti-women) and voter suppression (anti-black and brown). I think we may safely assume the deep pockets financing the reactionary side of the culture war are putting their money on the new crusades rather than on the dead horse of homosexuality. All of this suggests that the reactionary side in South Carolina may have lost interest in the issue of homosexuality, the very reason for being of the schismatic diocese. If so, the right wing groups' support for the Anglican diocese may have waned too. It was very strong in 2017 when it viciously hounded a state supreme court justice into recusing herself for the future of the church case. Since any pressure on the justices to side with the breakaways would have to be in private, we may never know what is actually going on behind the scenes. We may not be able to tell until the court issues its written decision.
Jurisprudence or culture war? I suggest we all listen very carefully to the questions the justices ask in the hearing. These will give us a good indication of their thinking and their probable course toward a written decision. Looking back, the 2015 hearing certainly indicated the future decision. We have every reason to believe this hearing will do the same.
So, again, we are nearing the end of the game. It has been a long and hard fight for everyone involved. The hurt, the wounds, the sorrows are deep and wide. Yet, in our fatigue and sadness we must not forget that we are Christians. Whatever happens next, we must remain worthy of the name we bear.
