THE SUPREME COURTS AND THE COUNTER-REVOLUTION

Both the United States Supreme Court and the South Carolina Supreme Court have become respondents in the anti-democratic counter-revolution going on in contemporary America. This is a dark turn in American history. Courts are supposed to be above politics. They are supposed to be impartial. In my view, the recent rulings of SCOTUS and SCSC indicate they are neither above politics nor impartial.

A long-standing guide of jurisprudence is stare decisis. This is the principle that courts must follow precedence in deciding cases, that is, they must follow earlier court decisions which had become established law. Find more about this concept HERE . If the court does not follow this principle, its decisions are no more than judicial fiat, or whim. In my opinion, this is what we have now both in the U.S. and in SC. The courts have ignored stare decisis and are ruling by fiat. This is highly dangerous for jurisprudence and by extension for the whole fabric of the civic society which rests on the shared respect for settled law. The breakdown of law leads to chaos, and that leads to anarchy. No civic state can survive such.

First, let's look at what the courts have done. SCOTUS overturned the Roe (1973) decision and revoked what had been in stare decisis a woman's constitutional right to abortion. Roe had been settled law for nearly a half-century and had been upheld time and again by federal courts. As for SCSC, it overturned its 2017 decision in the Episcopal church case. The 2017 decision had become the settled law of the land. On Apr. 20, 2022, however, the SCSC issued a "Revised Opinion" which rejected the majority decision of 2017 and replaced it with a new configuration of property ownership. The effect of the 2022 "Revision" was to remove Episcopal Church ownership of all the large Parishes (save one) of the old diocese.

Next, let's turn to the question of why the courts did what they did. It is not difficult to see. In fact, it is quite clear and simple. In recent years, reactionary conservatives have gained a 6-3 majority on the U.S. Supreme Court. President Trump selected three justices, all of which indicated they would recognize Roe as settled law in their confirmation hearings. In fact, when the time came, they all voted in the opposite. The present court has made it perfectly clear it is out to activate the repeal of the Great Democratic Revolution as much as it can. Having revoked women's rights to control their own bodies, they are now aiming at repealing rights to contraceptives and to same-sex marriage. No doubt there will be many more instances where personal freedom and human rights will be rolled back. 

In South Carolina, the state supreme court is a political construct. All justices are elected by the state assembly for ten-year terms. Republicans have a super majority in both houses of the state legislature. South Carolina is one of only two states in the U.S. in which state judges/justices are chosen by the state legislature (VA is the other). So, in SC, in order for a justice to get on the supreme court, he or she must gain the majority vote of a highly conservative legislature. 

The schism in South Carolina is very much about the culture war. For decades, the Episcopal Church had championed equal rights and inclusion of blacks, women, and gays in the life of the church. The group that staged the schism in 2012 did so expressly to keep gays and women from equality and inclusion. So, in SC, the Episcopal diocese continues the democratic revolution as seen in the national church while the secessionists (calling themselves the "Anglicans") resolved to support the anti-democratic counter-revolution. Nothing shows this better than how their respective denominations reacted to the recent revocation of the Roe decision. The TEC leadership was GRIEF-STRICKEN while the ACNA bishops REJOICED .

The new actions of the SC and national supreme courts can best be understood in the perspective of the culture war now raging in America. This, too, is not difficult to understand. The culture war is a democratic revolution facing a backlash, or counter-revolution. The democratic revolution in America sprang up after the Second World War to enact a sweeping range of reforms for elements historically marginalized or ignored. Most notably, African Americans, women, and homosexuals were granted equality and inclusion in the power structures of the society that had been heretofore monopolized by white men who had always considered American to be "their" land. By 1968, a coalition had formed to oppose the democratic revolution. It was composed basically of men, white southerners, and white evangelical Christians. Their goal was to preserve the traditional white male power structures. This meant the democratic revolution was now opposed by a reactionary, or counter-revolutionary movement. This has been the culture war of American since 1968. 

The democratic revolution reached a symbolic high point with the election, and reelection, of an African American man as president (2008, 2012) and the legalization of same-sex marriage (2015). While monumental for democracy, these also energized the reactionaries greatly. Long story short, the reactionaries disabled reforms going through Congress by freezing the Senate while at the same time gaining control of most of the state governments and securing most of the seats on SCOTUS. Hence, states are passing a long list of anti-democratic legislation while SCOTUS is busy rolling back human rights the courts had once granted. The counter-revolution has proven to be a far more formidable force than one might have imagined even a couple of decades ago.

As we now know, the counter-revolution had an extremely anti-democratic and potentially catastrophic side-effect. President Trump and his more virulent supporters attempted a coup d'état. They came very close to pulling it off. No president in American history had every tried to overthrow the government. Even though the reactionaries failed that time, they may not fail the next time their candidate loses an election and refuses to concede.

And so, we have to put the schism and the actions of the courts in the broader context of contemporary American life. The American people are now engaged in an escalating culture war. It will determine whether the nation continues on in its democratic revolution and becomes more and more a well-functioning pluralistic society of freedom and equality for all or whether the nation reverts to its pre-democratic revolution past and secures power for the white man. The first path will be majoritarian, the second minoritarian. The first would be democratic, the second fascist.

Will the United States Constitution survive this culture war? I suspect it will. It survived a cataclysmic civil war, after all. However, I also believe we are in for a far harder struggle to keep it that I had imagined a few years ago. 

No one has had a harder struggle for democracy that the French. In 1793, they declared a democratic republic, the first in modern western civilization. They granted universal manhood suffrage and proclaimed an egalitarian society and government. So, in just four years they went from absolute monarchy to a democratic republic. However, the ideal was not realized anytime soon. In the years to come, France went through two emperors, two kings, three bloody revolutions, numerous foreign wars, to wind up eighty years later where they had started in 1793, a democratic republic, where they are today.

I do not think we will have that kind of instability. We have had a relatively successful constitutional government for over two hundred years. However, I do think we are in for a good deal of strife while the counter-revolution runs its course.

I do think, too, this helps us understand why there was a schism in SC and why the courts have acted as they have. Everything has to be put in context to understand its meaning.

This is my take on what is happening now. What's yours?

TWO REPLIES TO TEC LAWYERS' RETURN

There have been two replies to the TEC lawyers' Return.

1-

One of the seven parishes with open petitions for rehearing before the South Carolina Supreme Court filed a reply to the Episcopal lawyers' Return of June 20. Attorneys for Holy Comforter, in Sumter, submitted to the SCSC today, "Reply of Church of the Holy Comforter."

In the six-page paper, the attorneys argued that 1-Holy Comforter acceded to the Episcopal Church and the diocese in 1968, years before the Dennis Canon appeared (1979). 2-the parish did not accede to the Dennis Canon after 1979, and had no intent to create a trust for the national church. 3-the All Saints decision (2009) set the standard for creating a trust. 

The lawyers for the Episcopal side had argued in their Return of June 20 that all of the seven parishes in question had affirmed their accession to or adoption of the Dennis Canon after its creation in 1979. 

As for the standard of the All Saints decision, that was set aside by the SC Supreme Court in its Aug. 2, 2017 opinion. Four of the five justices agreed that All Saints was not relevant to the present case. At any rate, the SCSC ruled in favor of the local parish of All Saints, Pawleys Island, in 2009, because the diocese had granted a quit claim deed to the parish in 1903 and thereby relinquished any claim it might have had in a trust. No such argument is being made now---that the parishes had gained quit claim deeds before the Dennis Canon appeared.

2-

Alan Runyan and other lawyers filed a Reply for the rest of the six parishes with open petitions for rehearing. They also submitted their 14-page paper on June 27.

Here is this layman's interpretation of the main arguments in this Reply:

---the trust was revocable.

---the parishes had no intent to create trusts for the national church.

---the parishes did not accede to or adopt the Dennis Canon.

---the parishes could revoke trusts after 2006.

---the diocese revoked its version of the Dennis Canon, made in 1987, in 2010 when it revoked its accession to the canons of the Episcopal Church.

All of these are old points. There is nothing new here. All of this has been settled in the SC Supreme Court decisions of 2017 and 2022. The court has ruled that the parishes in question acceded to the Dennis Canon and that they did not revoke these accessions. In fact, the SCSC has ruled twice that these six parishes are property of the Episcopal Church because of their accessions to or adoptions of the Dennis Canon. 

EPISCOPAL LAWYERS FILE RETURN AGAINST PETITIONS FOR REHEARING

On today, Monday, 20 June 2022, attorneys for the Episcopal Church side filed with the South Carolina Supreme Court, "Return to Petitions for Rehearing." It is a sixteen page summary addressing the two issues the court requested in its 7th of June order for the Return: 1-whether the parishes could revoke their accessions of the Dennis Canon, and 2-whether trusts were created before the Dennis Canon appeared in 1979. 

Seven parishes remain with open petitions for rehearing before the SCSC. Six parishes, of the fourteen to be returned to the Episcopal Church, that did not ask for rehearing and Christ Church, of Mt. Pleasant have been remitted to the circuit court for disposition in return to TEC.

Here is my layman's understanding of today's Return:

---the issue of revocation is a moot point because it is the "law of the case." The majority of justices ruled on August 2, 2017, that the parishes could not revoke their accessions to the Dennis Canon, under South Carolina law. By unanimous decision, the court left this standing in its April 20, 2022 order.

---as for the argument that parishes could not have created a trust before the Dennis Canon appeared in 1979, the lawyers said today the evidence on record shows that all the parishes acceded to the Dennis Canon in some form after 1979. As for the argument that a parish could unilaterally revoke a trust it created after 2006, the lawyers said that even if they could have done that, they did not follow the procedures required under the law to effectuate a revocation. 

Bottom line---the law says the parishes did not revoke the trusts they created by adoption or accession of the Dennis Canon. Furthermore, all of the parishes adopted or acceded to the Dennis Canon after 1979, and even if they could have revoked the trusts they did not do so.

In my opinion, all of these issues have already been settled by the SC Supreme Court, actually in 2017, and I do not understand why the court keeps rehashing the same points that were supposed to be settled law. If the court grants a rehearing, it will be the third time it has gone over the same issues and will result in a third ruling. The SCSC has ruled twice already that the parishes in question belong to the Episcopal Church. At this rate, at some point soon, respect for and the reputation of the SC Supreme Court itself will become an issue. 

Now, we have to await a reaction from the SC Supreme Court. 

FACING TRANSITIONS;

THE REV. CALHOUN WALPOLE TO LEAD RESTORATION OF ST. JOHN'S

There are signs that, at long last, transitions are about to begin that will eventually lead to the settlement of the ownership of the various parts of the pre-schism diocese of South Carolina. The circuit court has received the partial remittitur from the SC Supreme Court. This orders the restoration of the diocesan assets and properties as well as seven parishes, of the fourteen in question, to the Episcopal diocese. It is just a matter of time before circuit judge Edgar Dickson implements the SCSC remit order.

There are still seven of the fourteen with open petitions for rehearing before the SCSC. On tomorrow, 20th June, the Episcopal lawyers are to submit a counter-argument to the court opposing the petitions. Then, the justices will decide on the disposition of these seven. Odds are they will deny rehearing. If so, this will add seven parishes in the remit to the circuit court bringing the total to be restored to fourteen. The SCSC will probably make a final decision on the last seven in the next few weeks.

Some parishes to be returned to TEC are already making plans for the transfers. In fact, the officers of the Anglican diocese have been holding dinner meetings with the clergy, and their spouses, of the fourteen parishes in question. The Rev. Todd Simonis, ADSC Canon for Church Planting, has been talking to the groups about ways to keep the congregations together as they leave the properties behind. He estimates that between two-thirds and three-fourths of the congregation will leave with the departing clergy. Find this HERE @34. He stresses bonding the people in an "identity" of being "God's people" by "purpose and posture" which means a lot of personal contact.

In order to keep most of their congregants with them as they leave the premises, the departing Anglican clergy will try to differentiate their religion from that of the Episcopal Church. For instance, for years before the schism, during it, and ever since, the Anglicans in SC have insisted that TEC no longer believes in the basics of the Christian religion, i.e. that Jesus Christ is the unique source of salvation. This assertion is not true. TEC has not changed its religious beliefs. Such as this would require resolution(s) of the General Convention, something that has not happened and certainly will not happen. The Anglicans' accusations are really a smoke screen to cover their real objections of TEC, granting full equality and inclusion of homosexuals and women in the life of the church. The schism was triggered not by a religious conflict but by a difference in social policy. Nevertheless, the Episcopal clergy will have their hands full counteracting years of scurrilous propaganda embedded in the fourteen parishes and aimed at invalidating the ancestral church. The congregants who remain in the buildings will find out that the Episcopal religion has not changed but its social policy has. They will have to decide whether to stay in a church that opens itself to non-judgmental equality and inclusion of all people.

This effort at differentiation is well under way at one of the seven in the remit order, Christ Church, of Mt. Pleasant. The clergy are screening "The Differences Video Series," a six-part set of videos, 20-25 minutes each, so that parishioners can "Learn about the differences between our church and our former denomination." Apparently this is a re-run of the hateful anti-Episcopal propaganda program Anglican diocesan leaders produced in the wake of the 2017 SCSC decision. (NOTE. Rector of Christ Church announced in church this morning that a new corporation has been registered under the name "Christ Church Anglican" and that the present parish would not accept donations made to "Christ Church" or "Christ Episcopal Church." Apparently, the parish leadership plans to continue operating in Mt. Pleasant under the name of Christ Church, Anglican after the move out of the buildings. No mention was made about dates or plans to move.) 

If the Anglicans want to know what is in store for people who leave their home churches, they have only to consult anyone in the ten worshiping communities of Episcopalians forced out of their church homes in 2012-13. Then, the people who refused to go along with the schism and its anger, fear, and discrimination assembled wherever they could find space: living rooms, funeral homes, banks, old schools, boat docks, bar-b-que restaurants, borrowed churches, you name it. Several of these ten communities will soon be returning to their home churches in the upcoming transitions. Having endured nearly a decade in the wilderness, this will be a great homecoming for the long suffering faithful. They took the hard way because it was the right way. They endured. They kept the faith and now they can prepare to return home.

The one of the ten with which I am most familiar is St. Catherine's, in Florence SC. Unfortunately the faithful of this community will not be returning to their home churches since all three local churches remain with the schismatic diocese. Nevertheless, they are about to christen their new church quarters. On Thursday, 23 June, the good folks of St. Catherine's will welcome Bishop Woodliff-Stanley to their new home at 1806 West Palmetto Street. The bishop will consecrate the new facility and install the Rev. Eunice Dunlap as vicar. I will be there in spirit.

The story of St. Catherine's is similar to the rest of the ten. In late 2012, a group of Episcopalians in Florence and nearby towns began meeting in living rooms as the ongoing Episcopal Church in that area. My daughter was in this group. For a while they met in an old school beyond the edge of town and they flourished. Then, a local Lutheran congregation kindly and generously offered to share their church building with the Episcopalians. For several years they met at Cross and Crown Lutheran Church, on far West Palmetto St. Finally, they moved into an old shoe store near Five Points. They have renovated it as an attractive church. So, after nearly ten years, the intrepid and resolute Episcopalians of Florence have their own church building, their very own sacred space. These people are my heroes.

Apparently, the first parish among the fourteen to return to the Episcopal Church will be St. John's, of Johns Island, Charleston. The present rector there has announced that the Anglicans' last day will be July 10th. Presumably, they will turn over the keys after that and on July 17th an Episcopal clergyperson will appear for Episcopal prayer book services. 

We now know who this person will be, the Rev. Canon Calhoun Walpole, presently at Grace Cathedral Church, in Charleston, and for years after the schism Archdeacon of the diocese. She announced the news in church this morning.

The Rev. Callie Walpole is the perfect person for this task. St. John's is her home church. She will be going home as the parish goes home to the Episcopal Church. Since this will be the first of the wayward parishes to return home and the start of a long restoration process, the service on July 17th will be a joyous occasion of celebration. Maybe, just maybe, the desperately-needed healing of the harsh and deep wounds of division will start. The homecomings will begin.

__________________________

NOTE. 11:30 a.m.     The senior warden of St. John's announced in church this morning that the dates are still on. The last Anglican service will be on 10th July, and the first service beyond will be at Haut Gap Middle School, at 10:00 a.m. on 17th July. He said this would be a "temporary arrangement" awaiting proceedings on to some future permanent quarters. He added that the search committee of the vestry had unanimously chosen, and the vestry had agreed, as next rector, the Rev. Jeremy Shelton, present assistant. It is apparent the present parish leadership is working hard to move the congregation out en masse. In his remarks, Shelton told the congregation this morning "I see all of your faces," at Haut Gap on July 17.

___________________________

PERSONAL NOTE.     Happy birthday to my wife Sandy who was born 80 years ago today. We have been married for 55 years. (Believe it or not, that is her natural hair color.)

 

ANGLICAN LAWYERS GO TO COURT FOR BETTERMENTS

On June 10, 2022, attorneys for the Anglican Diocese of South Carolina filed in the circuit court requests for betterment payments from the Episcopal Church and the Diocese of South Carolina. Find the two papers HERE and HERE .

Actually the papers were an extension of the suit the secessionists first brought for betterment reimbursements in 2017. On November 20, 2017, the ADSC filed in the circuit court "Amended Complaint." The Episcopal side asked Judge Edgar Dickson to dismiss this suit but he refused. The Anglican side's suit for betterment payments has been on the books ever since.

The new papers ask for payments from the Episcopal side for two areas, the diocese and the local parishes. In its April 20, 2022 ruling the SC Supreme Court ordered that the diocesan properties and assets belonged to the Episcopal diocese. It also ordered that 14 of the 29 parishes in question were property of the Episcopal Church and must transfer possession of the local properties to the Church.

As I understand it, the "betterments" provision of SC law allows an occupant of property, who believed he owned the property but really did not, to sue the property owner for payment for any improvements he made on the property while he thought he owned it. Find the SC law code on betterments HERE .

I am not a lawyer and am not going to try a legal analysis of this; however, I see several problems with the present betterments issue.

In the first place, in the Episcopal Church, the local parish is almost always the owner of the property, that is, the deed holder. If the parish has owned the property all along, how could it sue itself?

In the second place, the court will have to figure out when the occupants could have reasonably believed they owned the properties but really did not. Everyone knew about the Dennis Canon before, during, and after the schism of 2012. The parishes knew the church law. How could they reasonably believe they owned the property? 

Moreover, the courts have gone back and forth on who owned the local properties. On Feb. 3, 2015, the circuit court ordered that all property belonged to the secessionist side. On Aug. 2, 2017, the SC Supreme Court ordered that 29 of the 36 parishes in question were property of the Episcopal Church as with the diocesan property. On June 18, 2020, the circuit court reinstated the decision of 2015 and ordered all property to the secessionists. Finally, on Apr. 20, 2022, the SCSC overruled the 2020 order and ordered 14 of the 29 parishes in question to the Episcopal side. It did the same for the diocesan properties. So, there will be a big problem deciding who owned what when. Good luck with that. 

In addition, the SCSC is not through. It is still considering petitions for rehearing of 7 of the 14 in question. It may be weeks, or months, more before these are resolved. 

Other than listing the 14 parishes in question, the papers of the Anglican lawyers of June 10 did not give any details. They did not give any dates on which the occupants thought they owned the properties but did not. They did not list any specific improvements any parish made. They did not give any money figure to be paid. They spoke only in generalities.

My guess is the Episcopal side will submit a motion for dismissal of these June 10 papers requesting betterment payments. If Judge Dickson rejects this and agrees to the betterments suit, he will have to face a lot of complicated issues, namely the exact dates of the possession, the actual ownership, and the specific amounts to be reimbursed for each of the fourteen. This would require a vast amount of work. Surely this would not be something any judge nearing retirement would welcome.

GUNMAN KILLS THREE AT CHURCH IN VESTAVIA HILLS AL

Last evening, a gunman opened fire on a covered dish supper group at St. Stephen's Episcopal Church, in Vestavia Hills, an affluent suburb on the south side of Birmingham, Alabama. No motive has been announced. News reports say he killed two people and injured another. The injured person died at the hospital. The gunman is now in custody.

Find a news article about this HERE .

Please keep the people of St. Stephen's, and of the Diocese of Alabama in your prayers.

Today, June 17, is the seventh anniversary of the massacre at Mother Emanuel, in Charleston. 

Since shootings in churches and every other public place have become commonplace, every parish and mission should have a live shooter protocol. Something that really should be unthinkable has become all too real. This is the time in which we live.

________________

UPDATE. 12:00 p.m. Click HERE for new information on this incident.

NOTES,  13 JUNE 2022

Welcome, blog reader, on Monday, the 13th of June. Last week was a busy one for the litigation of the schism. The South Carolina Supreme Court took two important actions. Let's recap a bit of what happened. 

The first action concerned the petitions of the eight parishes asking the SCSC to hold a rehearing on their April 20, 2022 decision. These eight were among the fourteen that the court had found to be property of the Episcopal Church under their accessions to the Dennis Canon.

Among the eight, the court denied entirely the petition of Christ Church, Mount Pleasant. The justices also denied parts of cases of three other parishes (Old St. Andrew's; St. Luke's, of Hilton Head; and Trinity, of Myrtle Beach). They left open all of the petitions of four of the local churches (Holy Cross, Stateburg; Good Shepherd, Charleston; Holy Comforter, Sumter; and St. Jude's, Walterboro). In spite of the skewed interpretations of the Anglican side, the SCSC did not grant anything to the eight petitioners. It did not agree to a rehearing. It did not agree to "reconsider" their cases. It did not "move forward" anything. The only action the SCSC took, outside of outright or partial denial of the motions for rehearing, was to direct the Episcopal attorneys to file a "Return" by 20 June 2022. A Return would be a response, or counter-argument, to the seven still active whole or partial petitions for rehearing before the court.

The second action the SCSC took was to issue a Remittitur to the circuit court directing the disposition of the properties in question. Christ Church, of Mt. Pleasant, was included along with the other six to be returned to TEC, the six of the fourteen to be returned that had not contested the Apr. 20 decision. The Remit also listed the fifteen parishes that the court found to own their properties. The only properties that were not in this Remit were the seven parishes still holding open petitions for rehearing before the court.

The Anglican side made a great deal about what the SCSC did last week as if it were a significant advancement for their side. Not so. It was a formality, and one that the court had followed the last time around in 2017. Then, the SCSC issued its opinion on August 2, and the Anglican side filed for rehearing on September 1. On September 7, the SCSC asked the Episcopal side to file a Return, or counter-argument. It did on September 18. Two months later, on November 17, the SCSC issued a denial of rehearing and sent a Remittitur to the circuit court to implement the August 2 decision. Note there was a two month gap between the time the Episcopal lawyers filed their Return and the SCSC published its decision on rehearing. If the court takes two months this time, they would be responding in mid-August.

As I said in a recent blog piece, the SC Supreme Court has been so inconsistent in the last seven years, it is best that we not venture to predict what they will do now. They seem completely free to ignore, even contradict and supersede, earlier decisions and rulings. Although the SCSC has denied parts of the petitions for rehearing, they have not denied all of them even though the justices demanded emphatically in their April 20 opinion that the case was closed as of that moment and there could be no remand.

Now, we can do nothing but wait for the Episcopal attorneys to file their Return by Monday, June 20. After that, there will be another period of waiting for the SCSC to rule on the seven open petitions for rehearing. It seems we have spent most of our time in the last decade waiting. 

Meanwhile, the circuit court judge, Edgar Dickson, has the Remittitur on his desk that gives him explicit instructions on the dispositions of the properties. One must remember, however, he is under no time constraint, so he could presumably drag this out as long as he likes. The last time he fiddled with the case for two and a half years. Moreover, as we have learned by experience, the Anglican lawyers are clever at deny and delay.

So, in the big picture, there does seem to be a framework of a settlement on the far horizon. However, the Episcopal side could be in for a lot of frustration and disappointment if people expect this to come soon or to be easy. We have learned better in these ten long, hard years of this bitter legal war. 

As we wait for the next milepost on the rocky road of the litigation, let us take a break and stroll around my garden. Even though the calendar says we are still in spring, my garden is in its summer mode. I have not shown much of my garden lately as we have had more important issues to discuss. Now, we need a break.

My favorite place to sit is on the brow of a slight slope where I can see most of the garden. It is shady and cool in the morning. Camellias are on the left, hydrangeas on the right, and plenty of weeds everywhere (I pull and spray, then ignore the rest).

A relatively warm winter and wet spring have spurred the banana trees into robust growth. This is a tropical collection near a seating area. The large banana tree here is already fifteen feet high and will get much taller before the end of the growing season.

Among the several kinds of hydrangeas in the garden, Nikko Blue stands out at this time of the year. It is the most common form of hydrangea in the south, for good reason.

Every southern garden should have gardenia, for the sweet scent if nothing else. I have several kinds. This is Gardenia Radicans, or Dwarf Gardenia. It grows only a couple of feet tall as it spreads out. I have a series of these filling in between holly bushes along a walkway. The most common form of gardenia is August Beauty which can grow into a large shrub. All of the gardenias are in full bloom now.

So, back to the schism as we bide our time waiting for the Episcopal lawyers to present their counter-argument. It is due a week from today. 

Finally, I found yesterday's second reading appropriate for everyone enduring the trying effects of the schism. It is worth repeating here. Romans 5:1-5:

Since we are justified by faith, we have peace with God through our Lord Jesus Christ, through whom we have obtained access to this grace in which we stand; and we boast in our hope of sharing the glory of God. And not only that, but we also boast in our sufferings, knowing that suffering produces endurance, and endurance produces character, and character produces hope, and hope does not disappoint us, because God's love has been poured into our hearts through the Holy Spirit that has been given to us.

ST. JOHN'S RETURNS TO EPISCOPAL CHURCH SERVICES ON JULY 17 (tentative)

The Rev. Greg Snyder, rector of St. John's, on Johns Island, Charleston, announced in church this morning that the 10th of July would be the last Anglican service in St. John's. It will also be his last service before he leaves for his new job in Tennessee. There will be one service in St. John's that day. The last Anglican service in Grace Chapel will be on the 3rd of July.

Starting on the 17th of July, the Anglican congregation will begin worshiping in Haut Gap Middle School, at 1861 Bohicket Rd., Johns Island. 

Mr. Snyder emphasized this morning that the congregation must remain "unified" as it moves out and efforts are being made to make that happen. 

All of these dates are tentative, as Snyder also emphasized. However, the SC Supreme Court has already issued the Remit order to the circuit court directing the transfer of St. John's property to the Episcopal diocese. It is just a matter of time before the court implements the order.

If these dates hold, Episcopal clergy will appear in St. John's on July 17, 2022 for the restoration of the parish to the Episcopal Church and Diocese of South Carolina. 

If all goes as planned, St. John's will be the first of the parishes to be restored to the Episcopal Church. The SC Supreme Court has ordered fourteen parishes to be restored; however, seven of them still have petitions for rehearing before the SCSC. Last week, the SCSC sent a Remit order to the circuit court directing the lower court to implement the transfer of seven, of the fourteen, to the Episcopal diocese.

WHAT'S THE MATTER WITH THE SC SUPREME COURT?

In the SCSC hearing of December 8, 2021, Justice Kittredge famously asked Alan Runyan, lawyer for the Anglican side, "How many bites of the apple do you get?" He meant, how many times are you going to litigate these same issues in court? Now, we know the answer---as many as the SC Supreme Court will allow. 

Runyan is facing a possible third bite, at least for the seven parishes still contesting the SCSC ruling of 20 April. The court has indicated it is still considering some of the arguments of these parishes and has asked the Episcopal lawyers to present a counter-argument to the court. This will be the third time the court has ruled on the same matter. I think it is time to ask, What's the matter with the court on this matter?

The SCSC has already issued "final" decisions on the disposition of the same parishes twice. On Aug. 2, 2017, it released an opinion giving three majority decisions. These recognized seven parishes as independent, twenty-nine parishes as belonging to the Episcopal Church, and the diocesan properties as belonging to the Episcopal diocese. The court refused a rehearing and sent a Remittitur to the circuit court. A Remit is an order to implement a decision. If the court had wanted further litigation of the issues, it would have issued a Remand. It did not. The Anglicans appealed to SCOTUS which denied cert. Both sides settled in for implementation of  the supposedly final SCSC decision.

Instead of following the Remit order, the circuit judge took it upon himself to interpret the SCSC decision entirely freely. He wound up giving a diametrically opposed order. He gave everything to the Anglican side. It was this order that the Episcopal side appealed to the SC Supreme Court.

The SCSC held a strange hearing on December 8, 2021, in which the justices demanded that their 2017 opinion was not final. The chief justice declared that the circuit court judge did what the SCSC expected him to do in interpreting the SCSC decision as he wished in spite of the Remittitur, and that he (the C.J.) had not concluded the twenty-nine belonged to the Episcopal Church even though he had voted such with the majority, had voted against rehearing, and issued a Remit order to the lower court. He seemed to disavow his entire role in the 2017 decision even though his role is a matter of public record. I, for one, am still scratching my head over this.

The court went on to make a unanimous ruling, on April 20, 2022, ordering 14 parishes back to the Episcopal Church and 15 parishes to independence. In other words, it revoked the majority decision of 2017 and split the 29 parishes that were to go to TEC into two groups, 14 for TEC and 15 for the Anglicans. Otherwise, it kept the same terms as the 2017 decision. This meant two oppositional interpretations, by the SCSC, of the parishes' accession of the Dennis Canon. In 2017, four of the five justices agreed that 29 parishes had acceded to the Canon. In 2022, all the justices ruled that only 14 parishes had acceded to the Canon. They all used the same evidence in the court record. The court substituted a new and different final decision for an earlier final decision.

Nevertheless, the justices declared the "Revised Opinion" of April 20, 2022 explicitly final and to be implemented forthwith. Justice Few wrote:

As to the parishes that created a trust, we direct that appropriate documentation be filed in the public record indicating the National Church [TEC] and the Associated Diocese [EDSC] now own that real estate. FROM OUR DECISION TODAY, THERE WILL BE NO REMAND. THE CASE IS OVER. (emphasis added).

The last paragraph of the April 20 Opinion was equally final and explicit:

The fourteen Parishes listed in Subsections III.B.vi., vii, and viii did create a trust in favor of the National Church and its diocese, which is now the Associated Diocese. We order the governing bodies of the fourteen parishes that we hold created a trust to prepare an appropriate legal instrument to document the transfer of title of each Parish's real estate to the National Church and the Associated Diocese, and upon agreement to the terms of this instrument, record it in the public record with the appropriate local official.

Now, the SCSC is saying it is open to changing its mind on the seven parishes still petitioning for rehearing. This means the court has reneged twice on the idea of finality. On Apr. 20 they had even proclaimed "no remand" and "the case is over". One can only wonder now what they meant by these words. When does "over" mean over?

One can only wonder too if the justices realize the potential damage this inconsistency could be doing to the reputation of the court, the state court structure, and the rule of law in South Carolina. By giving different and superseding rulings on the same issues they are signaling that no decision is ever really final, a party can litigate the same issues until it gets its desired outcome, and lower courts can disregard and replace SCSC decisions. At the least this is disorder, and the most chaos. Neither is good for the stable rule of law, something a civic society must have for survival. Otherwise, it is anarchy.

The root of the problem in the state courts of South Carolina is the conflict between the principles of the First Amendment of the U.S. Constitution and state law. The First Amendment requires separation of church and state. The civic state cannot interfere in the internal workings of a religious institution. The Episcopal Church is hierarchical. This is something both the SC Supreme Court and the federal court in Charleston have agreed upon. They both concluded the pre-schism diocese continued on in the Episcopal diocese after the schism because of the principle of hierarchy. The federal judge even went so far as to issue an Injunction forbidding the new breakaway contingency from claiming to be in any way the pre-schism diocese.

However, state courts have declared they are adjudicating this case under neutral principles, that is, applying state property laws neutrally, or equally, to both sides. The perplexing problem they have encountered is in fitting state law to Church law, something they should not have been doing in the first place. Under Church law, the Dennis Canon imposed a trust for the Episcopal Church on local church property. Since TEC is hierarchical, all local churches are automatically under the Dennis Canon.

However, SC state law requires the deed holder to create a trust in writing for a trustee. A trust cannot be imposed from the outside. This is where the disagreements and contradictions crept in. The justices tried to set criteria for determining if a local parish had actually created a trust for TEC. Defining what made a trust is what led to the different interpretations. In 2022, the justices said the interpretation of 2017 was wrong, that only 14 and not 29 parishes had created trusts. The criteria had changed from 2017 to 2022. Now, they may change again if the justices decide they were wrong about the seven parishes now contesting the April 20 ruling. This splitting of hairs of what constitutes accession to the Dennis Canon could be never ending depending on the interpretations of the judges. In fact, if the parishes were parts of the Episcopal Church, they acceded to the Dennis Canon. Every one of the parishes acknowledged they were Episcopal churches.

The other big issue the court has wrestled with is whether a parish could revoke its accession to the Dennis Canon. This issue has been settled by the SCSC, twice. In 2017, a majority of justices agreed that the trust was irrevocable. In 2022, all of the justices explicitly affirmed this. This is a settled issue that should not be open to change.

At some point, the SC Supreme Court is going to have to say, enough is enough. Surely that point has passed. The SCSC has already ruled twice that these seven parishes asking for rehearing are property of the Episcopal Church.

By opening the door for a third decision, the SC Supreme Court is veering dangerously close to damaging itself, the state court system, and the rule of law in South Carolina. For this reason, above all others, the court should deny asap the seven petitions for rehearing and issue a new Remittitur to the circuit court to restore the seven to the Episcopal Church. If, on the other hand, the court should actually reverse itself, again, and grant the property to the local parishes, the damage could be great, not so much to the Episcopal Church as to the state of South Carolina.

After more than seven years of handling the church case, no one can say the SC Supreme Court has performed well. Now, the justices have created a situation where they could actually make things worse. They can cauterize the wound or they can bleed the wound anew. One can only hope they understand the potentially serious outcomes of their choices. 

SC SUPREME COURT GRANTS PARTIAL REMITTITUR

The South Carolina Supreme Court today issued an Order granting the Episcopal Church's motion for a partial remittitur. The Clerk of the SCSC sent the official Partial Remittitur today to the Clerk of the circuit court, in St. George.

Find the Order HERE .

The Church lawyers had asked the court to send a remit to the circuit court concerning the six parishes, among the fourteen to be returned to TEC, that did not contest the April 20, 2022 SCSC decision. The court has now agreed, and has included Christ Church, of Mt. Pleasant, since the court has denied their petition for rehearing outright. The remit order covers:

---St. Bartholomew's, Hartsville

---St. John's, Johns Island, Charleston

---St. David's, Cheraw

---St. Matthew's, Ft. Motte

---Holy Trinity, Charleston

---St. James, James Island, Charleston

---Christ Church, Mt. Pleasant

Today's Order also includes disposition of the 15 parishes that the April 20, 2022 SCSC decision declared to own their local properties.

Now that the circuit court has received the official Remittitur from the SCSC, it can begin ordering the transfer of the deeds of the seven parishes in question to the Episcopal Church side. We know that St. John's, of Johns Island, is waiting on the Remittitur before it turns over that property to the Episcopal diocese. One may expect the others to follow soon.   

SC SUPREME COURT HAS NOT GRANTED A REHEARING

On yesterday, I posted here a note that there was a report that the South Carolina Supreme Court had granted a rehearing to seven of the eight petitions before the court (actually the report did not use the word "rehearing" but used the word "reconsideration" which, while technically true, could also be misleading in context; "granted the petition" was not true since the petition was for a rehearing). In fact, we have learned this morning the SCSC has not agreed to any petition for rehearing.

This morning, the SCSC posted its undated [June 7?] Order giving its decision concerning the petitions for rehearing. Here is the Order. Click on image for enlargement.

Here are the salient points:

---Christ Church, of Mt. Pleasant, was "Denied in its entirety." This means the SCSC has completely rejected Christ Church's request.

---The SCSC denied parts of the petitions of three parishes:  Old Saint Andrew's, St. Luke's, of Hilton Head, and Trinity Church, of Myrtle Beach.

---The SCSC requested that the Episcopal Church side submit a reply to the two arguments made by all the parishes (except Christ Church). They are: 1-that the parishes had the right to revoke any trust the Episcopal Church might have had on the property, and 2-no trust was created because the purported accession was before the Dennis Canon was created in 1979.

---The Episcopal Church side has until June 20, 2022 to file its counter-argument to the court.

Thus, we now know the South Carolina Supreme Court has not agreed to a rehearing of any of the eight petitioners. What it has done is to leave open consideration of some of their arguments and to ask the Church side to present a counter-argument to the claims of the petitioners.

Unfortunately, the court lists "Issues, I, II, and III" without identifying these issues. The eight petitions to the SCSC are not the same and do not follow the same arguments. I, for one, am unclear on what Issues I, II, and III are.

Now, we have to wait on the paper the Church lawyers will submit by June 20. Then, as far as I can see, the SC Supreme Court will decide whether to 1-hold a rehearing or 2-refuse a rehearing, or 3-revise the "Revised Opinion" of April 20, 2022 without a rehearing. Basically, the SCSC has to decide whether to keep the decisions they made in the April 20 opinion or change them. 

The people who think we have finality and closure might reconsider their view.

A REPORT THAT THE SC SUPREME COURT HAS GRANTED RECONSIDERATION

The Rev. Marshall Huey, rector of Old Saint Andrew's, has just released a statement to his parish that Alan Runyan reported to him that the South Carolina Supreme Court has granted seven of the eight petitions for reconsideration (only Christ Church of Mt. Pleasant was denied). I have not been able to confirm this yet. As of this moment (6;30 p.m.) this has not been reported on the sccourts website. I will update when the SCSC officially posts its decision.

Find Huey's statement of today HERE .

I will return when I have received confirmation of this report.

NOTES,  3 JUNE 2022

5:00 p.m. EDT.  Greetings, blog reader, on Friday, June 3, 2022. As of this writing, there is no news from the South Carolina Supreme Court, or at least there is no new announcement on their website. Some of their postings appear a day late. It has been nearly a month (May 5) since the eight parishes petitioned the SCSC for rehearing of the 20 April 2022 decision. There has been no response from SCSC. It has been a week (May 27) since the TEC side filed a motion with SCSC for partial remittitur. They asked the court to remit orders to the circuit court for the return to TEC of the six parishes that did not contest the 20 April decision. There has been no reaction from SCSC. One might expect responses to appear soon. Odds are the court will deny a rehearing and will remit their decision to the lower court.

As I opined in a recent post, one should not let the euphoria of an apparent "final" court decision skew one's vision of the future. Alas, the schism and its legal war have not reached finality and closure, far from it. Eight parishes are fighting the SCSC decision. Some have said they will not go quietly. The first parish (St. John's) to indicate it would hand over the property to the Episcopal diocese has also said it will not do so until there is a court order. No property or asset has actually changed hands. At this point we really do not know when this will happen. 

There is still a vast amount of difficult legal work to do to reach closure. Moreover, the Episcopal side would do well to remember who their legal battlefield opponent is. One important thing we have learned in the course of the schism is that Alan Runyan is a master of tactics in litigation. When the 2017 decision came out, he refused to accept defeat and began a brilliant counter-offensive. 

He conducted a nearly five year campaign to undo the 2017 decision. In the end, he succeeded in getting 15 more parishes out of TEC control. They just happened to include all of the large and politically powerful parishes of the old diocese (except one, Grace). And, they just happened to be the ones he represented himself (St. Helena, St. Michael, St. Philip, and Church of the Cross). Some people have characterized the 2022 SCSC decision as a win for TEC. I disagree.

In my view, the real winner of Apr. 20, 2022, was Alan Runyan. He managed to get all the big churches, save one, out of the 2017 order to return to the Episcopal Church. He snatched a remarkable victory in 2022 from the jaws of defeat of 2017. Runyan continues to represent the Anglican diocese and 9 of the 36 parishes that made the lawsuit against TEC in 2013. One of the nine is St. John's, of Johns Island. It is preparing to hand over the property but has said it will not do so until the SCSC remits its Apr. 20 decision to the circuit court.

Meanwhile, we seem to be inundated these days with bad news, so much so that one may dread to turn on the television or computer. Rampant gun violence is a man-made plague in our American society; and it is getting worse by the day. No one knows this better than the people of Charleston. There are more guns than people in America. More than one hundred Americans are killed by guns every single day. In my opinion, the base of the problem is the Second Amendment. It must be repealed. Nothing else has worked. Nothing else will work. It is all a lot of little band-aids on an enormous uniquely American cancer.

Then, beyond America, there is that other man-made disaster, the Russian attack on Ukraine. It has been one hundred days of hell. Unable to sweep to a quick victory, the Russians are now resorting to brutal and barbaric bludgeoning of the population. This is a crime against humanity and the perpetrators must be held accountable. This evil must not stand.

On top of all the man-made evil, one must not forget we are still in the grips of the worst pandemic in a century. In fact, in the last few weeks, figures are rising for new cases and hospitalizations across America. Already over six million people in the world have died of COVID-19, including one million Americans. In all, over one-half a billion people in the world have contracted the covid virus. Some people are ready to declare the pandemic over and life back to normal. This would be much too premature.

Then, on top of all that, the economy is making strange gyrations. While there are plenty of good jobs available, inflation is taking off as a rocket. The price of gasoline has doubled in the last couple of years and seems to be exploding just in the last few weeks. There are predictions of six dollar a gallon prices by August. This is bound to have a marked trickle-down effect of raising the prices on practically everything else. Even if one can find the desired items on the shelf, they are likely to cost considerably more than they did last year. People living on fixed incomes will find themselves making hard choices of what they will do without.

While we are beset with woes, we must not allow ourselves to be vanquished by the darkness. We will find a way through. We have our faith and we have each other. And, there are pieces of good news all around us if we only look for them.

Who cannot be inspired by Her Majesty, the Queen? Even an ardent republican as myself must give full admiration to Queen Elizabeth who has done her duty brilliantly for seventy years. She has seen it all, and she did so with steady resolve and courage. No one could have done that job better. We Episcopalians must remember that she is also the Supreme Governor of the Church of England, our mother church. She has done that job well too, for seventy years.

Now, back to the schism, the main focus of this blog. After all these long years, the broad parameters of a settlement loom on the distant horizon. There is still a vast amount of work to do, but if all that we know now goes well, one day down the road all this unpleasantness will be over. People just need to be patient and to bear in mind the legal war is still going on and will continue for a long time to come.

Finally, to end on a note of levity, here is a picture that caught my eye. It used to be that some things were understood.