TOWARD A RESOLUTION

Part XI

(First posted on Jan. 25, 2018).
This is the eleventh part of the series of blog posts I started on Jan. 5 entitled "Toward a Resolution". In this series, we are looking at some important questions around the schism as a way of arriving at the truth of what has happened and what will happen to the people of the old diocese of South Carolina. Today we take up Question # 10 on out list:

WHEN THE DIOCESE OF SOUTH CAROLINA EXHAUSTS ITS LEGAL AVENUES, WHAT ARE THE CHOICES OF ITS COMMUNICANTS?

This question really has two parts: the exhaustion of litigation, and the choices of the DSC communicants.

First, on the litigation.

As of this writing (Jan. 25, 2018), the DSC lawyers (Alan Runyan is the chancellor of DSC) are engaged on four legal fronts:

1-mediation,

2-lawsuit in circuit court on "betterments",

3-plan of an appeal of the SC supreme court decision of Aug. 2, 2017, to the U.S. Supreme Court, and

4-the case in the U.S. District Court in Charleston called vonRosenberg v. Lawrence.

All four of these will become exhausted in time. On the first, mediation, the federal judge, Richard Gergel, ordered this on Aug. 30, 2017. The two sides have met three times (most recently on Jan. 12). Everyone involved is under a gag order, but there is absolutley no overt sign of progress. After the third meeting, the two sides did not announce the date for another meeting. It is obvious that mediation has failed to settle the legal issues between the two dioceses; and there is no apparent reason to expect any difference in the future. Mediation appears to be a dead issue.

     [Judging from the few signs we have had about the mediation, it appears TEC/TECSC is proposing a settlement enacting the SCSC decision while DSC is holding out for the status quo before the SCSC decision. In short, DSC wants the Church to recognize the loss of the 35 parishes while TEC wants DSC to hand over the 29 parishes. At least, this is my best guess on why the mediation has failed and is likely to end soon.]

On the second point, DSC entered a lawsuit against the Episcopal Church (TEC) and the Church diocese (TECSC) claiming payments under the "Betterments Statute" in which occupants of property belonging to someone else are due payment for improvements they (the occupants) made on the property. TEC/TECSC has filed a motion for dismissal of this suit. This is a frivolous lawsuit that is likely to fail, and sooner rather than later. I expect circuit court judge Edgar Dickson to dismiss the suit promptly.

On the third point, DSC can ask the U.S. Supreme Court to take an appeal. SCOTUS accepts 1% of the requests made to it every year. It is highly unlikely the high court will take this case. It is reasonable to expect this to be rejected within a few months after the request is made.

Of all four issues, the fourth is by far the most important. The federal court in Charleston will proceed with a trial. The longer DSC uses mediation, the longer the delay in the start of the trial. The federal case is on "stay" during mediation. DSC has already stalled it for several months. Eventually, however, the federal judge will proceed. This judge, Gergel, is one well-known for efficiency and expediency. He will move it along no doubt within the next few months. Historically, federal courts almost always side with the institutional church over the local breakaway groups. It is reasonable to assume the federal court will rule for the Episcopal Church. If so, there is the real possibility that DSC will lose everything in court including the seven parishes SCSC left outside TEC/TECSC trust control.

The fundamental issue of property ownership has been settled. The Episcopal Church has regained the bulk of the property in question. What we have now is DSC using a set of delaying tactics to put off the turnover of the property as long as possible. It is no longer a question of who legally controls the property. It is a question of when DSC will turn over control of the property to the Episcopal Church and its diocese. It is just a matter of time. It is all but certain DSC will exhaust its legal avenues without changing what has been determined, and probably sooner rather than later.

There are approximately 15,000 communicants (active members) in the DSC local churches. About 13,000 of these are in the 29 parishes that SCSC has returned to TEC/TECSC. The question now is, What is to happen to these 13,000? Another issue, of course, is the clergy. After the schism, 104 priests and deacons of the old diocese left the Episcopal Church and were officially released by the bishop. There is a simple process for their return. Several priests who left have already rejoined the Church through this reconciliation process.


Second, on the choices.

The 13,000 communicants have choices. Basically, they can stay with the buildings or they can leave the buildings. If they stay with the buildings, they return to the Episcopal Church. On leaving the buildings, the people may make any number of choices. They could drop out of religion altogether. They could join another denomination. They could stay with the breakaway diocese and form a parish/mission in exile. This last choice is full of problems not the least of which is finding a suitable meeting place. In the non-existent new space in peninsular Charleston, this will be a major problem. The 29 parishes to be returned include all of the DSC parishes in the Charleston metro area.

So, essentially, what the 13,000 communicants have to decide is whether to return to the Episcopal Church or not. That is the stark and unavoidable reality. The point of this "Toward a Resolution" blog series is to help these 13,000 make their own best informed choices.

To you among the 13,000, my suggestion is to gather all the information you can about the what happened to you before, during, and after the schism. Decide for yourself the best course of action. Life is a series of choices. We all have to make them every day. As Christians, we should hope we are making the right ones.


Short answer:

13,000 communicants of DSC will soon have to choose between staying in their church buildings and returning to the Episcopal Church, or leaving the buildings. The SCSC has ruled. The DSC leaders' present delaying tactics are only extending the pain of the schism. 

TOWARD A RESOLUTION

Part XII

(First posted on Jan. 28, 2018).
This is the twelfth part of our series "Toward a Resolution" of the schism in South Carolina. See Part I, Jan. 5 for the introduction and list of questions. Today we address Question Number 11 on out list:

WHAT HAPPENS TO THE PARISH PROPERTY AFTER THE PARISH RETURNS TO THE EPISCOPAL CHURCH?

[Reminder. This blog is offered as personal opinion only. The author is not officially related to a diocese.]

There has been a good deal of confusion and misinformation about property ownership and control before, during, and after the schism. DSC leaders seem to want their people in the parishes to believe they own their own property as long as they are away from the Episcopal Church but will lose the property if the parish is part of the Episcopal Church. In their FAQs they even implied that the Episcopal bishop is likely to sell off the parish properties to Muslims.

To understand the Episcopal Church and property we must return to the Dennis Canon. Find a description of it here . A canon is a church law. The Dennis Canon was adopted by the Episcopal Church in 1979 and has been church law ever since. DSC explicitly acceded to it from 1987 to 2010. The Dennis Canon says:

All real and personal property held by or for the benefit of any Parish, Mission, or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission, or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission, or Congregation otherwise existing over such property so long as the particular Parish, Mission, or Congregation remains a part of, and subject to, this Church and its Constitution and Canons.

The Dennis Canon has two parts. In the first, two beneficiaries are set up over the parish properties, the Episcopal Church and the Church diocese. The second part says the local parish may retain ownership of the property as long as it stays in the Episcopal Church.

Two points should be emphasized here. First, the local parish may be the actual owner of the property and hold the deed. The diocese and the national church do not actually own the property. As beneficiaries of the trust they have certain rights over the property. Ownership and trust are not the same things. What this means in practical terms is that the parish owns the property as long as it stays in the Episcopal Church but cannot sell or alienate the property without permission of the trust beneficiaries, the diocese and the church. Thus, it is not true to say that the diocese, or the Episcopal Church, owns the parish property. The parish always owns the property. What the diocese and church have is control bestowed by right of a trust. The parish is limited in what it can do with the property by virtue of the trusteeship. It is not a question of ownership. It is a question of control.

What happens to the parishes once they return to the Episcopal Church is essentially up to the Church bishop and constituted diocesan authorities. Presumably, if there is a self-sustaining congregation in the parish, it would go on as before. The parish clergy would have to decide whether to remain and return to the Episcopal Church or leave. If there are not enough parishioners remaining to maintain a self-sustaining parish, the diocese would have to decide what arrangements to make, as moving to mission status.

Perhaps all of the larger parishes among the 29 will retain congregations large enough to support parish status. Some of the smaller ones may not. The diocesan authorities would have to work out arrangements for all of the local churches.

It is not right to assume the Episcopal Church bishop would sell off properties that are not self-sustaining. Across the country, bishops have made a wide array of arrangements for the local properties. 

Short answer:

Nothing will really change for the parish property after the parish returns to the Episcopal Church. The parish will continue to own the property and will use it as before. The Church and diocese will continue as beneficiaries of the trust, just as they had been for many years before the schism. There was no problem then. There should be none in future.    

TOWARD A RESOLUTION

Part XIII

(First posted on Jan. 31, 2018).
This is the thirteenth installment in our series "Toward a Resolution" of the schism in South Carolina. See the introduction in Part 1, Jan. 5. Today we take up the last question, # 12:

WHAT IS AN ANGLICAN?

The leaders of DSC insisted during and after the schism that the diocese would continue as an Anglican church and would be in an Anglican province. They said by joining the Anglican Church in North America in 2017 they were in an Anglican province recognized and supported by most Anglicans in the world. Ever since the schism, DSC leaders have publicly repeated the words "Anglican" and "province" countless times. It would not be surprising then for the communicants of DSC to believe they are members of the Anglican Communion now just as they had been before the schism.

Let us begin with definitions.

"Anglican."

Dictionaries commonly define the word Anglican as does the Merriam-Webster (find here ):

of or relating to the established episcopal Church of England and churches of similar faith and order in communion with it.

The standard definition of "Anglican" is one in communion with the Archbishop of Canterbury.

"Anglican Communion."

The Anglican Communion was established in 1867. It is a loose union of the Church of England and Anglican churches beyond that are in communion with it. See the Wikipedia article here . To be in the AC, a church has to be in communion with the Archbishop of Canterbury. At present, the AC is composed of 39 independent national and regional churches around the world called "provinces." The Episcopal Church is the one and only part of the Anglican Communion in the United States. The AC is structured with Four Instruments of Communion: 1-Archbishop of Canterbury, 2-Primates (heads of the provinces), 3-Lambeth Conferences, 4-Anglican Consultative Council. The 39 provinces are entirely self-governing; there is no central executive, legislative, or judicial authority in the AC.

As of an accounting in 2001, there were 168 separate self-styled "Anglican" denominations in the world, with at least 50 of them in the United States. They commonly call themselves "Anglican" or "Episcopal" churches. For a list see this link . Ten of these have local churches in lower South Carolina. However, only one church in the U.S. is in the Anglican Communion, the Episcopal Church. All of the others who call themselves Anglican are not parts of the Anglican Communion.

In 2009, a dozen of the 50+ "Anglican" splinter groups in the U.S. came together to form the Anglican Church in North America. It was created by GAFCON, the Third World coalition of anti-homosexual rights Anglican bishops, and the four diocesan groups that split off from the Episcopal Church because of the issue of homosexuality. It was explicitly formed to take the place of the Episcopal Church as the legitimate Anglican province in the U.S. See the Wikipedia article here .

ACNA calls itself a "province." It claims around 112,000 members although it will not release any statistics. DSC joined ACNA in 2017.

GAFCON and Global South have welcomed ACNA and placed the ACNA archbishop among their leaders. Some of the GAFCON/GS provinces have broken communion with the Episcopal Church.

ACNA is not in the Anglican Communion. Officials of the AC have said repeatedly that ACNA is not in the AC. On Oct. 3, 2014, Archbishop of Canterbury Justin Welby told the Church of Ireland Gazette editor that ACNA "is not part of the Anglican Communion," but was "a separate church" (find it here ). In 2017, the Secretary General of the Anglican Communion, Josiah Idowu-Fearon, said: "It is simply not true that ACNA is part of the Anglican Communion...To be part of the Communion a province needs to be in communion with the See of Canterbury and to be a member of the Instruments of the Communion. ACNA is not in communion with the See of Canterbury---and has not sought membership in the Instruments" (find the remarks here ). 

ACNA archbishop Foley Beach was invited to the primates' meeting at Canterbury in January of 2016 but was not recognized as a primate and not allowed to vote. In the meeting, the primates said that if ACNA wanted to join the AC, it would have to apply to the Anglican Consultative Council. At the same time, they discouraged the ACC from admitting ACNA. When the ACC met a few weeks later, in Lusaka, there was no mention of ACNA joining the AC. Beach was not invited to subsequent meetings of the Anglican primates.

So, when DSC leaders tell their people they are in an Anglican province, they are misinforming and misleading them. ACNA can call itself whatever it wishes but it is not an Anglican Communion province. It is not in the Anglican Communion and almost certainly will never be in the AC. Beach, and all the bishops in ACNA are not in communion with the Archbishop of Canterbury. 

In what sense, then, is the DSC "Anglican"? It still uses the Book of Common Prayer and generally follows traditional worship although as seen in the earlier posts here, DSC has redefined itself as a fundamentalist-oriented evangelical church far out of the mainstream of traditional and classical Anglicanism. It is what at best we could call a Quasi-Anglican church.

Short answer:

An Anglican is one in communion with the Archbishop of Canterbury. Members of the Episcopal Church are Anglicans. In the schism, the Diocese of South Carolina withdrew from the Anglican Communion. It is no longer in communion with the Archbishop of Canterbury. It has joined a new church that is Anglican in name only. It is not in the Anglican Communion and almost certainly never will be. Communicants in DSC today are not Anglicans in the accepted sense of the word.


In the next blog post, I will summarize our findings on the truth about the schism in South Carolina.

TOWARD A RESOLUTION

Conclusion

SUMMARY OF QUESTIONS AND ANSWERS

 ON THE SCHISM

(First posted on Feb. 1, 2018).

Having looked in detail at the issues involved, in my opinion these are the most reasonable conclusions to draw on the questions at hand:


1. Did the Episcopal Church try to remove Bishop Lawrence from the Diocese of South Carolina?

No. Bishop Lawrence took an oath to obey the discipline of the Episcopal Church at his consecration in 2008. In 2012, TEC imposed discipline on him for flagrant violation of Church law. Lawrence refused the discipline and left the Episcopal Church. He could have cleared himself by letter to the Presiding Bishop or appeal to the House of Bishops. Lawrence removed himself from the Episcopal Church.


2. Did the Episcopal Church attack the Diocese of South Carolina?

No. The action of the Episcopal Church to discipline Bishop Lawrence was for him alone. It had nothing to do with the Diocese of South Carolina which is separate from the bishop. There is no evidence to support the wild claim that TEC was out to flip the diocese from conservative to liberal.


3. Did the Diocese of South Carolina have the right to withdraw from the Episcopal Church?

No. South Carolina gave full accession to the constitution and canons of the Episcopal Church when its representatives signed the documents in 1789. The C and C set up a General Convention to make rules for the whole church. There was no provision in the C and C allowing a diocese to disregard or nullify an action of GC. There was no provision in the C and C to allow a diocese to withdraw from the union outside of the terms in the C and C.


4. Was the schism a popular uprising or a conspiracy among a small group?

The schism of 2012 was planned and carried out by a group of no more than two dozen people. This cabal enacted it in secret (Oct. 15), then announced it to the world two days later as an accomplished fact (Oct. 17). The clergy and laity of the diocese were confronted with it. There was never a discernment or open discussion in the diocese about the critical issues of the day or whether to disaffiliate from TEC in 2012.


5. Did the issue of homosexuality cause the schism?

Yes, the issue of homosexuality was the direct cause of the schism. The leaders of DSC led a backlash against TEC after every General Convention from 2003 to 2012. They used homosexuality as the wedge issue to inflame the diocese against the Church. By cumulative effect, the leaders had the confidence to enact the schism after the 2012 GC approved a liturgy for the blessing of same-sex unions. No other issue was remotely as important as this in the run-up to the schism.


6. Was the Diocese of South Carolina right to issue the quit claim deeds?

No. The Dennis Canon was a law of the Church. DSC had no right to ignore a law of the Church. The Dennis Canon said that all parish property is held in trust for the Episcopal Church and the Church diocese. DSC had no right to surrender the Church's or the diocese's trust interest in the local properties. The legal validity of the quit claim deeds is open to question.


7. Did the Diocese of South Carolina leave the Episcopal Church because TEC had abandoned "the faith once delivered"?

The diocese did not leave the Church, certain members did. The idea that the Christian religion was born full grown and has been handed down from one generation to the next unchanged is not true. Outside of the core belief in the Kerygma, much of Christianity has changed and evolved over the centuries. Despite some controversial remarks of certain Episcopal bishops, the Episcopal Church has not changed the doctrines and beliefs of the church, only the institutional practices, as ordination of women and equal rights for non-celibate homosexuals. Any revision of the doctrines of faith would have to be made by the General Convention which has not done so.


8. Were the actions of the Diocese of South Carolina before, during, and after the schism God's will?

No one can know the mind of God. It is beyond human comprehension. Yet, DSC leaders often said the diocese was favored by God, identified their courtroom adversary as evil, and touted the legal victories as signs of the divine approval. Since the state supreme court ruled against DSC on Aug. 2, 2017, the DSC leaders have not mentioned God's will in reference to the litigation.


9. Has the Diocese of South Carolina restored orthodox Anglicanism in the diocese?

No, DSC abandoned classical, traditional Anglicanism at the schism and has veered off into a fundamentalist-oriented evangelical church out of the mainstream of Anglicanism. This was finalized in 2015 in the four documents issued by the Marriage Task Force.


10. When the Diocese of South Carolina exhausts its legal avenues, what are the choices of its communicants?

In all likelihood, DSC will exhaust its avenues in state court and will lose in federal court. The state supreme court decision returning 29 of 35 parishes to control of the Episcopal Church will almost certainly stand. The clergy and the 13,000 laity in the 29 churches will have to decide whether to stay with the buildings and return to the Episcopal Church, or leave the buildings.


11. What happens to the parish property after the parish returns to the Episcopal Church?

There will be no change. The parish will continue to own the deed to the property. The Episcopal Church and the Church diocese will not own the property but merely hold trust control over the property. In practical terms all this means is that the parish cannot sell the property without permission of the Church and diocese. For many years before the schism this was the set up and there was no problem with it.


12. What is an Anglican?

The dictionary defines "Anglican" as one in communion with the Archbishop of Canterbury. In the U.S., the only church in communion with the ABC is the Episcopal Church. TEC is one of the 39 provinces of the Anglican Communion. Since the schism, DSC has not been part of the Anglican Communion. It has joined an independent denomination, the Anglican Church in North America, that is not in the Anglican Communion. Being recognized and supported by GAFCON and Global South bishops does not make one an Anglican.

SOME FINAL THOUGHTS FOR THE 13,000 COMMUNICANTS IN DISCERNMENT

You have a hard task ahead of you. My thoughts and prayers are with you as you pass through this difficult time. Having seen the pain that came with the brokenness of the schism in 2012, I know the anguish in store for you.

First, you should know by now that a great deal of what you have been told was not true, or was only partially true, selectively true, or misconstrued. 

It is a terrible thing to realize that one's esteemed and fondly-regarded leaders were wrong, even disastrously wrong. It will be hard for you to sort out the truth of what happened in the schism. We naturally want to trust that what our church leaders tell us is always true and right. I have provided a great deal of documented information to help you do this in my book, A History of the Episcopal Church Schism in South Carolina and in this series of blog posts, of which this is the conclusion. The 300,000 word book should tell you all you need to know about how you got into the situation you are in. It is readily available on Amazon and other Internet outlets. I have done all that I can to help you reach a truthful understanding of the schism. You have an enormous amount of verified facts easily at hand. What you do with all of this is up to you. You and your church family alone should decide the best way forward. 

Before we leave, let us take a moment to be honest and frank about the driving issue that led to the schism, homosexuality. If people return to the Episcopal Church do they have to approve of homosexual acts? No. Let me explain.

When the General Convention adopted a liturgy for the blessing of same-sex unions in 2012 and same-sex marriage in 2015, it provided for local option. No diocese, parish, clergy or lay person is required to condone or support these measures. In fact, most of the ultra conservative (those who refused to recognize the validity of non-celibate homosexual ordinations) Episcopalians remained in the Church. A number of bishops announced they would not allow the reforms in their dioceses; and they had every right to do that. In the Church diocese in SC today, the local vestries, mission councils and clergy are completely free to refuse the blessings and marriages. Thus, when parishes return to the Episcopal Church they too will have the same right to exclude the pro-homosexual reforms. All the Church asks is that we allow others to have access to the reforms. There is a key difference between the DSC and TECSC today. DSC has institutionalized intolerance while TECSC allows a free choice.

Thus, the choice facing the 13,000 boils down to two:  1-returning to the Episcopal Church and classical Anglicanism, or 2-following the DSC leaders into an independent, fundamentalist-oriented sect.


Eventually, there will be a resolution of the schism, one way or another. At least 29 parishes will return to the Episcopal Church although no one can know how many parishioners will return. The leaders of the independent diocese have shown every sign of going on with a separate "diocese" whatever happens. Whether you choose to return to your ancestral home in the Episcopal Church or depart with the new independent diocese, you should be at peace with your choices.

THE FRIDAY GARDEN STROLL

It is Friday, and that means time for a garden stroll. We need it. At least I need it after the past few days. What a week it has been, the most eventful in terms of litigation since the release of the SC supreme court decision on August 2, 2017. We witnessed three major initiatives on the Church side this week, one we knew was coming, the other two unexpected. I am still trying to process all of it and sort out what it means.

The first event was on Monday when the Episcopal Church and the Church diocese (TECSC) filed a response brief in the U.S. Supreme Court. This was in opposition to the independent diocese's (DSC) petition to the court for writ of certiorari, that is, to review the SCSC decision of Aug. 2, 2017. The main argument the Church side made was that this case was litigated entirely under state laws following neutral principles and involved no federal constitutional issues. In other words, the case was not appropriate for the U.S. Supreme Court. I think this was a strong argument. A second event, on Tuesday, was TEC/TECSC's petition in the circuit court for the enactment of the SCSC decision, that is, for the actual repossession of the 28 (29) parishes in question, the Camp, and the pre-schism diocese. This was a blockbuster. Finally, the Church has moved to regain physical possession of the properties at hand. Once SCOTUS denies DSC's petition, I expect the circuit court to move posthaste on carrying out this. After all, the property issue will have been settled and the court would have no choice but to enact the SCSC decision. The third big event came on Wednesday when the Church diocese submitted an amended complaint in the federal court bringing up to date the suit there. In that, the Church is asking the court to recognize the legal rights of the Church diocese's bishop over the pre-schism diocese.

It was a dizzying three days of litigation. Since the legal war started on Jan. 4, 2013, nearly five and a half years ago now, most of the time we have all been just waiting, waiting for the courts to act. We all thought the state supreme court would never issue a decision, but it finally did, apparently after much agony, rather typical for the history of the schism. So, finally, this week, we have a great deal of movement all at once. What is more, we can expect the U.S. Supreme Court to announce its decision on whether to grant review by the end of June which is only seven weeks from now. Odds are SCOTUS will deny. Then, the decks will be cleared for sure and we should see matters start to wrap up. Hold on to your seat belts for the next six months. Turbulence ahead.

Anyway, today let us step back from all of that and recharge our batteries by a walk around my garden as it appeared this morning.

Oakleaf Hydrangea (Hydrangea quercifolia). Grows wild in abundance in the shady forests of the South. Produces elegant, lacy spikes of white flowers in spring. 

Clematis "Polish Spirit." An easy-care reliable vine with a mass of color in the spring.

The Knock Out Roses, again. They are in full bloom now.

A seating area in the early morning sun

What appears to be an ordinary green shrub is not. This is Alabama Croton (Croton alabamensis), one of the rarest shrubs in North America. It grows naturally in only a few places in the world, mostly in remote spots of Alabama. It is an endangered species. It is most noted for its leaves, green on top and silver on underside. This one is full grown at 5 feet.

Now, in the big picture, we know all is well. The litigation will be over one day. The schism will end at some point. I know, we all want it to come to an end, I as much as anyone else. But, meanwhile the rhythms of the seasons, the beauty of nature help keep us grounded. They remind us that a far greater power than ourselves is at work in the universe. My best wishes to all of my readers on this lovely spring Friday.

THE BASES ARE LOADED

It's the bottom of the Ninth Inning in the World Series between the Episcopal Church and the Diocese of South Carolina. The Church is at bat, the bases are loaded and there are no outs. The two sides are tied. Will the Church smash a Grand Slam or fizzle out? This is where we are today in the schism.

Hit number one came on Monday (May 7) when the Episcopal Church and the Episcopal Church in South Carolina filed a forceful response to DSC's petition for a writ of certiorari in the U.S. Supreme Court. (See blog entry of May 7, "The Episcopal Church Responds to the Diocese of South Carolina in the U.S. Supreme Court."). 

The second on-base came on Tuesday (May 8) when TEC/TECSC submitted a petition in the (state) circuit court essentially to repossess the 28 (29) parishes in question, the Camp, and the assets and entity of the pre-schism diocese. 

The third hit in a row occurred on Wednesday (May 9) when TECSC filed a Third Amended Complaint against DSC in the federal court.

Today, our attention turns to the second and third hits, in the circuit and federal courts.

The federal court.

On May 9, 2018, TECSC submitted "Third Amended Complaint by Bishop vonRosenberg Bishop Adams & Intervenor the Episcopal Church in South Carolina (the "Associated Diocese")" in the United States District Court for the District of South Carolina Charleston Division, Judge Richard Gergel. Find it here . 

This essentially continued the original suit of March 2013 in which the Episcopal Church bishop, Charles vonRosenberg, sued the independent diocesan bishop, Mark Lawrence, for violation of a federal law called the Lanham Act that protects nationally registered trademarks. In short, Bp vonR asked the court to recognize him and not Lawrence as the legal bishop of the Episcopal Diocese of South Carolina. 

On March 1, 2018, TECSC filed a "[Proposed] Third Amended Complaint..." in this case seeking to broaden the suit to include DSC's Trustees and parishes. The Third Amended Complaint filed this week made a few changes to the March paper. It deleted the earlier requests to remove and replace the DSC Board of Trustees and vestries. In this week's papers, the purposes of this earlier request would be transferred to the circuit court. Judge Gergel said in his April 16, 2018, "Order and Opinion" that he would not enforce the terms of the trust held by TEC because the property issues had already been settled by the South Carolina Supreme Court whose decision should be enacted by the appropriate court, the circuit court of Dorchester County. The Third Amended Complaint of this week did ask the court to cancel or transfer to TEC/TECSC, DSC's state registered trademarks (p. 31). Otherwise, the suit in federal court continues on basically the same. In essence, the Episcopal Church is asking the federal court to affirm its claim to the legal rights over the pre-schism diocese.

The circuit court.

Probably the strongest and most consequential hit of the week was TEC/TECSC's petition to the state circuit court. Find it here . This is a sweeping and dramatic appeal to the court to enact the majority decisions of the South Carolina Supreme Court. In essence, it would mean the Church's repossession of the old diocese. The petition itself is only 11 pages but the whole paper comes to 114 pages as it contains 3 attached exhibits, the SCSC decision of August 2, 2017, Judge Gergel's Order and Opinion of April 16, and the Acts of the SC assembly on Trustees (1880, 1902).

The 11-page petition contains some major requests. In general, "The Episcopal Church and the Associated Diocese seek the intervention of this Court to effect an orderly transition of possession and control of the property to which they are entitled by the judgment of the South Carolina Supreme Court" (p. 3). In short, it asked the court to order the return of the diocese and parishes to the Episcopal Church.

As for the diocese, the major point is that the court should enforce the installment of the TECSC Board of Trustees as the trustees of the Protestant Episcopal Church in the Diocese of South Carolina:  "the members of the Board of Trustees elected by the Associated Diocese [TECSC] be installed as the Board of the Trustees of the Protestant Episcopal Church in the Diocese of South Carolina (the "Trustees") to hold the diocesan property in trust for Associated Diocese..." (p. 5). This, of course, would mean the removal of the DSC Board of Trustees. The petition continued, "ordering that members elected by the Associated Diocese be installed as the Board of Trustees to hold the diocesan property in trust for the Associated Diocese" (p. 6). Installing the TECSC Board of Trustees would mean all assets and rights of the old diocese would return to the Church diocese.

As for the parishes in question, matters are more complicated. The SCSC ruled that 28 (29) parishes of DSC had acceded to the Dennis Canon and remained under the terms of this church law. The Canon held that the parish would retain deed to the property as long as it remained part of the Episcopal Church. Upon "disaffiliation," the parish broke the terms of the trust and forfeited ownership of the deed. Ownership moved to the beneficiaries of the trust, the Church and the Church diocese. On page 8, the petition asks the court to "require" the 28 parishes to "execute" transfer of titles to TEC/TECSC:  "the Court should enforce the August 2, 2017 Opinion of the South Carolina Supreme Court, by transferring title to the parish property from the parish corporations to The Episcopal Church and the Associated Diocese, by requiring Plaintiffs to execute any necessary deeds or instruments of title, or issuing the same by Court order" (p. 8).

Then, when TEC and TECSC get the deeds, they will transfer them to the Episcopal parishes (the parishioners in communion with the Episcopal Church bishop) (p.9):  "Upon receiving the deeds or other instruments of title, The Episcopal Church and the Associated Diocese may form new parish corporations and transfer the deeds or instruments of title to real and personal property to them thereby allowing them hold and use the property operating as Episcopal parishes in accordance with the hierarchical governance of The Episcopal Church and the Associated Diocese contained in the Constitution and Canons of each" (p. 9).

 With this process, TEC will not have to confront, remove, or evict any DSC vestry. The DSC vestry will simply be replaced by a parish vestry adhering to TEC/TECSC. The TEC/TECSC vestry will become the holder of the parish deed.

Finally, the Church petition asked the court to appoint a "Special Master" to oversee the transition:  "the appointment of a Special Master who will be able and authorized to enhance an orderly and expeditious resolution of all such issues" (p. 10). This impartial person would be one acceptable to both sides and the court. The management of a neutral overseer would remove the burden of making difficult changes from the parties involved.

If the circuit court grants the TEC/TECSC petition it will in fact transfer both the old diocese and the 28 (29) parishes in question to the Episcopal Church diocese. The Church is seeking to do this through orders of the court.

What now?
We can expect DSC to file a response to TEC/TECSC's petition. Then, the circuit court judge will have to decide on the various petitions before him. 

We can expect the U.S. Supreme Court to give its decision on whether to accept DSC's appeal by the end of June. I expect they will deny the appeal. That will clear the field for the final actions of the circuit and federal courts in the legal war between the independent diocese and the Episcopal Church. The next six months will be critical in the history of the schism.

The advantage, the momentum, now is on the Episcopal Church side. However, it is premature to draw conclusions. The game is not over even though the bases are loaded and the Church is up at bat. 

MAJOR NEWS ANNOUNCED TODAY !

(May 9)

CHURCH MOVES TO REPOSSESS

PROPERTIES AND DIOCESE
___________________

(May 9, 7 p.m.) Monday (May 7), Tuesday (May 8), and Wednesday (May 9) of this week turned out to reveal a major triple advance by the Episcopal Church and the Episcopal Church in South Carolina in the ongoing legal war between the independent Diocese of South Carolina and TEC. The actions occurred on all three of the avenues of litigation: U.S. Supreme Court, the (state) circuit court, and the U.S. District (federal) Court. One we already knew, the TEC response in the U.S. Supreme Court to DSC's petition for writ of cert. That was on Monday. The other two, from yesterday and today, we learned about today. They were petitions, one in the circuit court (May 8) and one in the federal court (May 9). The point of these is for the Church and the Church diocese to regain physical possession of the 28 parishes and Camp St. Christopher as well as the assets and legal entity of the pre-schism diocese.

I am just learning of the last two and had no idea these were in the works. I have been away from my computer all day and am just now returning. I will be back with more information and commentary as soon as I have had time to study the new documents.

This is an enormously important turn of events in the history of the schism.

Meanwhile, see the TECSC statement about the two new initiatives here .

THE EPISCOPAL CHURCH RESPONSE TO THE DIOCESE OF SOUTH CAROLINA IN THE U.S. SUPREME COURT

Today, Monday, May 7, lawyers for the Episcopal Church and the Episcopal Church in South Carolina filed a response brief in the U.S. Supreme Court:  "Brief for Respondents in Opposition." Find the link to it here . This was in reply to the Diocese of South Carolina's Feb.9, 2018, petition to the court for a writ of certiorari, or application for the court to review the South Carolina Supreme Court decision of August 2, 2017. That ruling recognized TEC and TECSC's trust control over 29 of the 36 parishes in question plus Camp St. Christopher.

Here is my understanding of today's brief:

The basic argument the church lawyers made is the same one I had held from the start. The matter at hand between the two sides in South Carolina was a matter of state law decided under state law. There is no ground for appeal of state law to the U.S. Supreme Court. SCOTUS is concerned with federal constitutional issues of urgent national importance. It does not concern itself with state law except as it may interfere with federal. This case does not.

In both the circuit court trial in July of 2014 and the state supreme court hearing on September 23, 2015, the diocesan lawyers had argued their cause entirely on state laws covering property and trust. They had not argued any aspect of the federal constitution. This was the general argument the Church lawyers made today in their brief. They said the case was one of state law and decided on neutral principles.

In its appeal of Feb.9, DSC had argued that the SC supreme court erred by wrongly applying a "hybrid" of neutral law and deference, allowing a church to get around state law. DSC asked SCOTUS to take the case in order to clarify "strict" neutral rights that would simply follow state law regardless of other factors.

STATE LAW

On the issue of state law today's brief said:

"the judgment entered against petitioners [DSC] by the state supreme court rested on state law alone." (p. 1).

"Thus, taken together, the decisions of these three justices [Pleicones, Hearn, Beatty] produced the result that, under South Carolina law, the parishes that did accede to the Dennis Canon are subject to trusts." (p. 14).

"Petitioners thus are flat wrong when they contend (at 18) that the court below did not find that 'a trust...had been created under South Carolina trust law.'" (p. 16).

"There accordingly is a fully adequate state-law basis for the judgment of the Supreme Court of South Carolina against petitioners." (p. 17).

NEUTRAL PRINCIPLES

On the issue of neutral principles, today's brief argued that SCSC did indeed follow strict adherence to neutral principles and there was no "hybrid" approach:

"Under the view of that majority [Kittredge, Toal, Beatty], South Carolina law must be applied to resolve church property disputes without regard to the nature of the relationships between the religious parties and entities involved in such disputes. That is precisely the 'strict' version of 'neutral principles' petitioners argue is constitutionally required." (p. 9).

"Critically, Chief Justice Beatty 'look[ed] no further than [South Carolina]'s property and trust laws to determine whether the purported trust created by the Dennis Canon comports with the requirements of either an express or constructive trust.'" (p. 10).

"A different majority---Chief Justice Beatty, with Justice Pleicones and Justice Hearn---concluded that parishes that did accede to the Dennis Canon hold their property in trust for the Church and the Episcopal Diocese." (p. 11).

"a majority of the state supreme court in this case applied the 'strict' approach, by relying on wholly neutral principles of state law to find trusts imposed on nthe parishes that acceded to the Dennis Canon." (p. 21).

NO FEDERAL QUESTION

The lawyers argued that since the case was considered under state laws and the courts strictly followed neutral principles, there was no question appropriate for the U.S. Supreme Court:

"But that disagreement is not reviewable by this Court because it presents no federal question." (p. 17).

"they failed to raise any such federal argument in the state courts. That failure precludes review in this Court." (p. 19).

"But that division does not matter at all in a case like this one, where the national church prevails under state law without the need to draw on the First Amendment to give effect to a provision of the national church's governing documents. Petitioners thus fail to establish a reason for review in this case." (p. 23).

HIERARCHY

The lawyers in today's brief also incidentally argued that the Episcopal Church is an hierarchical institution. As I saw it, this was really a side issue that was not integral to the three main arguments above (state law, neutral principles, no federal jurisdiction). Nevertheless, the lawyers pointed out that if SCOTUS decided to review the case, it would have to defer to the Episcopal Church because of its hierarchical nature. (p. 2, 3, 29). They also reminded the court that the majority of the SCSC had agreed that TEC was hierarchical.

Thus, it seemed to me that Church lawyers emphasized that the case had been adjudicated and settled under state law, that the courts had strictly followed neutral principles, and SCOTUS had no interest in the case. I found this to be a strong response to DSC's petition of Feb. 9.

What now?

The justices of SCOTUS will discuss the matter and vote on whether to grant DSC's request for review. This will probably occur before the end of June. Four of the nine justices must agree to grant the DSC's petition. If they grant, SCOTUS will have a hearing and issue a judgment probably during its next regular session (Oct 2018-June 2019). If they deny, that is the end of the matter and the SCSC decision of Aug. 2, 2017 stands as the final law. The 29 parishes and Camp St. Christopher will finally return to control of TECSC.

What are the chances SCOTUS will accept DSC's petition? It is most likely SCOTUS will deny. I think today's response strengthens that outcome.

For TECSC's statement on today's brief, click here .

ROGATION DAYS

Rogation Days in the church calendar originated in late ancient times. The word rogation is taken from the Latin verb "rogare," to ask. It was a time in spring of asking for blessings on the fields and in preparation for Ascension Day. The color is purple. This year, Rogation Days are April 25 and May 7-9. In the past I have had several "Blessings of the Garden" at Rogation time with full pageantry and garden party. They were wonderful events. Not this year. I do not have the heart. Much of my town lies in ruin from the March 19 storms. Forty of my neighbors lost their homes and hundreds more cannot live in their houses until necessary repairs are made. Countless hundreds of trees were destroyed. Some of them ancient magnificent wonders; and a few had shaded the first white settlers here in 1833. With so many of my neighbors still suffering the effects of the worst of nature, I could not summon up the will to celebrate the beauty of nature this year. It just did not seem right. This is not the time for a garden party.

Nevertheless, time moves on and spring is here in its full glory. My garden is at its overall best now, in early May with all the roses in full bloom. Here are some views of my garden this week:

Knock Out Roses. The central lawn is lined with these shrub roses. If you have room for one rose, choose this one. It is the most popular rose in America, for good reason: easy to grow, requires little attention, and is relatively pest free. Plus, it blooms well from frost to frost. I prune these back in winter to promote fresh growth in spring. This helps. The tree behind is corkscrew willow.

A spreading shrub rose "Magic Blanket." It is covered with pure white flowers. The grasses are "Zebra Grass." The ground cover is "Andorra Juniper." The small tree near the center is "Eve's Necklace." The large trees are sweetgums which I loathe and intend to have removed soon. 

Rose "Coral Drift." Another shrub rose, this one with coral, or orange/red flowers.

Yellow False Indigo (Baptista "Screaming Yellow"). False indigo comes in several colors and is a reliable, easy perennial.

Chinese Fringe Tree ( Chionanthus retusus). Cousin of the more popular Grancy Gray Beard tree. This is an excellent small tree. This one is full grown at about 15 feet. In spring it is covered with white "fringe." In autumn it turns a stunning yellow.

Purple Smoke Tree (Cotinus coggygris "Purple"). Unusual small tree that bursts into attention-getting puffs of "smoke" in the spring. Large tree behind is River Birch.

Bearded Iris "Firebreather" (Iris germanica 'firebreather'). Iris is not my favorite flower because it blooms only a few days. Irises are showiest when planted in great masses along water, as at the beautiful Iris garden in Sumter SC. I keep this one because of its unusual color.

On trellis, Crossvine (Bigonia capreolata var. atrosanguinea). A shady seating area. The vine is telling me its wants more sun.

I have thoroughly enjoyed working in my garden in the past few weeks. The weather is perfect; the birds are singing; and the pesky insects have not matured. I started my garden 15 years ago and planted almost all of the (now 700) plants myself. Today it is a mature garden and so I spend most of my time weeding, pruning, fertilizing, spraying and the like. These are easier on the back. I still get my hands in the dirt since that is an indispensable part of garden therapy.

And so I end with this ode to nature, the closing lines from one of my favorite books, Cross Creek, by Marjory Kennan Rawlings. It is a loving memoir of the old Florida I knew as a child. No one could have said it better about any little Garden of Eden:

But what of the land? It seems to me that the earth may be borrowed but not bought. It may be used, but not owned. It gives itself in response to love and tending, offers its seasonal flowering and fruiting. But we are tenants and not possessors, lovers and not masters. Cross Creek belongs to the wind and the rain, to the sun and the seasons, to the cosmic secrecy of seed, and beyond all, to time.

OLD SAINT ANDREW'S 

AND THE SC SUPREME COURT

The Diocese of South Carolina is claiming that Old St. Andrew's was one of the parishes not included in the list of 28 (29) parishes that the SC supreme court recognized as under trust control of the Episcopal Church. Old St. Andrew's is in the West Ashley area of Charleston. It has the oldest church building in the state of SC. It is sometimes confused with the other St. Andrew's, the one in Mt. Pleasant, on the far side of downtown Charleston.

In their Frequently Asked Questions (find here ), DSC asked:

"Is it true that some parishes were able to keep their property? Which churches are they?"

"The congregations ruled to be free from that trust claim are: Christ the King Grace Church, Waccamaw; St. Matthew's Church, Dalington; St. Andrew's Church, Mt. Pleasant; St. Paul's Anglican Church, Conway; Prince George Winyah Episcopal Church, Georgetown; St. John's Church, Florence; Old St. Andrew's, Charleston and St. Matthias' Church, Summerton."

This is not correct. Old St. Andrew's was not one of the churches listed by the court as outside of the Episcopal Church trust.

The South Carolina Supreme Court issued its decision on August 2, 2017. Find it here . Former chief justice Jean Toal listed the eight parishes that remained outside of the trust control of TEC:

1-Christ the King, Waccamaw

2-St. Matthews, Darlington

3-St. Andrews Church-Mt. Pleasant Land Trust

4-St. Paul's Episcopal Church of Conway

5-The Episcopal Church of the Parish of Prince George Winyah, Georgetown

6-the parish of St. Andrew, Mt. Pleasant

7-St. John's Episcopal Church of Florence

8-St. Matthias Episcopal Church, Summerton

On the last page Toal says:  "However, we are in the minority, because a different majority of the Court---consisting of Chief Justice Beatty, Justice Hearn, and Acting Justice Pleicones---would reverse the trial court and transfer title of all but eight of the plaintiff' properties to the defendants."

Thus the SC supreme court plainly did not include Old St. Andrew's parish among the eight.

Another bit of confusion has been on the total number of parishes still under the trust control of the Episcopal Church. Is it 28 ot 29? On the list of parishes taking action, 28 were listed. However, "the Church of the Holy Cross" was listed once. In fact, there are two Holy Crosses, one in Sullivans Island and one in Stateburg. I believe the list inadvertantly omitted one of these. The actual total number should be 29.

So, how many parishes did the SC supreme court leave in the independent diocese? Six. The two others are really one, St. Andrew's of Mt. Pleasant. It is in another diocese, "The Diocese of the Carolinas" which, like DSC, is also in the Anglican Church in North America. Thus ACNA has (at least) two overlapping dioceses in the Lowcountry. In fact, Steve Wood, the rector of St. Andrew's is the bishop of the ACNA diocese of the Carolinas.

The six parishes that now legally make up DSC:

1-Christ the King/Grace, Pawleys Island

2-St. Matthew's, Darlington

3-St. Paul's, Conway

4-Prince George Winyah, Georgetown

5-St. John's, Florence

6-St. Matthias, Summerton

The state supreme court was explicit on this in its 2 August 2017 decision. It did not recognize Old St. Andrew's as one of the parishes outside of Episcopal Church trust control. This means it is on the list of the 29 parishes still under TEC control.