NOTES --- JULY 22, 2020

Greetings, blog reader, on this Wednesday, July 22, 2020. The overriding news of the day is the continuing rapid spread of the coronavirus, particularly in South Carolina, now one of the hottest spots in the United States which is the world's epicenter of the COVID-19 pandemic.

The rise of numbers in July is alarming. On July 1, three weeks ago, South Carolina listed 36,399 reported cases and 739 deaths. As of this morning, SC is listing 73,337 cases and 1,221 deaths. So, in just the last three weeks, the reported cases in SC have doubled while deaths have climbed 65%. The state health department is estimating the actual number of cases in SC at 522,150. This translates to 11% of the state's population. Clearly, the virus is surging out of control in SC.

Charleston County continues to be the epicenter of the disease in the state. In just the last two weeks, reported cases there have increased from 6,073 to 9,778, a 61% rise. However, the state health department is now estimating the actual case count in Charleston Co. at 69,843, or more than ten times the reported number. It is clear, the disease is spreading rapidly in the Charleston area, and quicker than in the rest of the state.

Of course, SC is not alone in this health emergency. Florida is now reportedly the hottest spot in the entire world. The disease is hopelessly out of control in south Florida where there are more cases and deaths in Miami-Dade than in most countries. In fact, all of the southeastern states, plus Texas, Arizona, and California are showing alarming increases in COVID-19. This month, Alabama jumped from 45,785 cases to 70,255, a 53% increase while death numbers climbed from 1,033 to 1,301.

The data show us that the pandemic is rapidly worsening, particularly in the southern tier of America. What are the national and local political authorities doing about this? Their response fluctuates between nothing and chaos. There is no national leadership. Much of our local leadership is equally incompetent. Even something as simple as a mask has become politicized. Something more complicated, as schools, is nothing but anarchy. It is clear that the pandemic will only worsen until we get a vaccine, and that will probably not appear before next year. We have at least six months to go. You can do your own figuring to see where this is heading and how things will look at Christmas.

Meanwhile, we Americans are facing an upcoming national election in just three and a half months. President Trump is up for reelection. He is the subject of the day, whether to give him four more years or remove him. The polls today are predicting a landslide defeat for Trump and his party. My theory is that times have changed and most Americans are rejecting Trump's peculiar form of divide and conquer politics. What worked four years ago will not work today. Four years ago there was no common enemy to force a diverse America together. Trump very cleverly exploited the divisions in American society, particularly racial, to bring out enough resentful voters to give him success in the Electoral College. Now, the mood of the country is different. The virus is the national enemy now and is forcing the country to unite in its deadly face. The country longs for strong leadership through this unique health crisis. 

Trump has provided none. In fact, he is resorting to the only approach he knows. He is doubling down on his politics of division, especially of race. The country is rejecting this, as reflected in the polls. His reaction is to take even more extreme measures. He is employing secret police, without identification and marked vehicles, to take control of well-known Democratically-controlled cities. This is shocking, not to mention unconstitutional. He has also said very publicly that he may not accept the results of the election. This means he is contemplating an attempt to void the election by use of power and remain in the White House. If this happens, the U.S. will enter its worst crisis since the Civil War. Trump's many critics see him, and not the virus, as the greatest danger to the nation.

We are in a dark hour. Let us not try to pretend otherwise. It is best to know the truth even if it hurts because truth leads to wisdom. In this awful night of darkness, we must not stumble into despair. In the darkest of times, there is always the hope, and expectation, of a better day. This is what our faith tells us. We need look no farther than the example of the late John Lewis for a life based entirely on the belief in a better day. I can assure you Alabama is a vastly different, and improved, place than it was eight decades ago when he was born to a sharecropper in the backwoods of southeastern Alabama.  

THE STATUS OF THE LITIGATION,

JULY 19, 2020

Some important events in the litigation between the two dioceses are likely to occur this week or in the near future. This is an opportune moment to review the status of the legal war between the Episcopal Church and the historic Diocese of South Carolina (EDSC) on one side and the new Anglican Diocese of South Carolina (ADSC) on the other. After seven and a half years of litigation, it is easy to get lost in the trees and lose our way. 

There are three issues immediately at hand. One is whether Judge Dickson will issue a stay of his orders in his decision of June 19. The second is whether the Episcopal Church side's appeal of Dickson's Order of June 19 will go to the South Carolina Court of Appeals or to the South Carolina Supreme Court. The third is the response of ADSC to the EDSC side in the United States Court of Appeals. Let's take them one at a time.

STAY

In his decision of 19 June, Judge Dickson ordered that all 36 parishes owned their properties without trust control, that the Episcopal Church had no interest in the properties, and that a copy of the judge's order be filed in the courthouse of each county. The Church side asked the judge to reconsider his decision, but he refused (13 June). Immediately afterwards, on the June 13, EDSC filed an appeal with the SC Court of Appeals, and also filed a motion with Judge Dickson for a stay of his June 19 Order pending the appeal.

The EDSC lawyers made two main points in their request for a stay. One was that the SC Code of Laws called for a stay:

(Rule 241(a)): As a general rule, the service of a notice of appeal in a civil matter acts to automatically stay matters decided in the order, judgment, decree or decision on appeal, and to automatically stay the relief ordered in the appealed order, judgment, or decree or decision.

The other was timeliness, that the Anglican side could transfer, sell, or otherwise alienate the properties absent a stay.

Two days later, on June 15, the Anglican lawyers filed their response to EDSC's request for a stay. Their main argument was that the EDSC had improperly filed a notice of appeal with the SC Court of Appeals and that any complaint about the Orders would need to be appealed to the South Carolina Supreme Court, not the South Carolina Court of Appeals. 

Then, the ADSC lawyers made a curious point that they had no intention of transferring title of property at least at the moment. At first glance, this sounds as if EDSC does not need a stay because ADSC is not changing the property ownership. Actually, there is less here than meets the eye. The deed ownership was never the issue. From day one, the Episcopal Church said the parish held the deed of the property, but under conditions of the Dennis Canon. The Canon said the parish owned the property as long as the congregation remained in the Episcopal Church. The Episcopal Church and its local diocese were the beneficiaries in the trust imposed by the Canon on the property. If the congregation left the Episcopal Church, the ownership of the parish property would move to the Episcopal Church and its diocese. The issue was not the ownership of the deed but whether there was trust control on the property. The Episcopal Church said there was a trust. The breakaways said there was no trust in effect. 

Judge Dickson's Order of June 19 did not alter the deed ownership that remained with the parish. What it did say was that the Episcopal Church had no right to the properties and that a copy of the court order would be filed in every county where the properties in question were located. This is what the Church side wants to be stayed. They want to stop the judge's order from being registered in the courthouses. In their paper of June 15, the ADSC lawyers did not say whether they had filed the judge's order in the courthouses or if not, whether they would do so. They avoided the issue behind the smoke screen of no intention of transferring title of property, really an irrelevant point.

The next day, June 16, the Episcopal Church side filed a reply to ADSC's paper of the day before. They said they filed for appeal with the SC Court of Appeals because that is what the state code of laws required. However, they said:

Defendants [TEC/EDSC] filed a Motion to Certify which asks the Supreme Court to accept transfer of the appeal pursuant to Rule 204.

Rule 240 states:  "In any case which is pending before the Court of Appeals, the Supreme Court may, in its discretion, on motion of any party to the case, on request by the Court of Appeals, or on its own motion, certify the case for review by the Supreme Court before it has been determined by the Court of Appeals."

So, I read the TEC/EDSC response of June 16 to say the Church side has asked the state supreme court to take the appeal directly.

At any rate, we are awaiting a decision from Judge Dickson on issuance of a stay. A stay would suspend the orders found in Dickson's June 19 decision for the duration of the appeal. Considering the judge's actions all along in the two and a half years he has had this case, it is doubtful that he will grant a stay. Every decision he has made from day one has been in favor of the Anglican diocese. I see no reason to expect anything different now.

STATE APPEAL

So, the question is whether the appeal will be taken up by the state Court of Appeals or the state Supreme Court. The Anglican side definitely wants it to go directly to the the SCSC. From their paper of June 16, it sounds as if the EDSC lawyers want the same. 

I can see why the ADSC wants to go to the SCSC. It is not the same court as the one, nearly three years ago, that issued its landmark Aug. 2, 2017 ruling largely in favor of the Episcopal Church. Two justices have retired (Toal, Pleicones). Two new justices have replaced them. One justice (Hearn) has recused herself. Since all judges and justices in SC are elected by the state legislature for terms, it is safe to assume the two new justices are relatively conservative minded although we would have to study their records of decisions to know for sure their attitudes. It is hard to imagine anyone not rather conservative successfully running the gauntlet in the state house that is controlled by large Republican majorities. And, everyone knows the fundamental issue between the two dioceses is social, specifically, whether homosexuals should have equality and inclusion in the life of the church. Let's not try to pretend otherwise. The fundamental issue at stake here is social conservatism versus social liberalism. 

If the matter goes back to the SCSC, four justices will sit in judgment. Only one of the four (Beatty) was on the Church side three years ago. 

Still, we have to keep going back to the big issue at hand. The state supreme court ruled that the Episcopal Church owned the 28 (29) parishes and the Camp. It sent a Remittitur to the circuit court for this. The circuit judge refused the Remittitur, directly contradicted the SCSC decision and said the parishes owned their properties outright and the breakaway diocese owned the Camp. Thus, the supreme court justices have before them diametrically opposed orders. Which one takes precedence, supreme court or circuit court? It is unimaginable that the supreme court justices would not sustain their own court's work. If they allow a circuit court judge to discard and replace a state supreme court decision they will undermine the authority of the supreme court forever. It is unbelievable they would do this.

So, what we are awaiting is whether the appeal will go to the state Court of Appeals or to the state Supreme Court. We should know soon.

FEDERAL COURT

On Wednesday, July 22, the ADSC is scheduled to file its response brief in the United States Court of Appeals, Fourth Circuit. It sits in Richmond VA. 

On September 19, 2019, Judge Richard Gergel issued a landmark decision recognizing the Episcopal Church diocese as the heir of the historic diocese and owner of the names, marks and emblems. Along with this, he established two major points. One was that the Episcopal Church was hierarchical. The other was to issue a permanent injunction banning the breakaway faction from pretending in any way to be the historic diocese. He declared the secessionists to be a newly formed entity as a product of the schism of 2012. When the breakaways ignored his injunction, Gergel issued a second order enforcing it. 

The ADSC appealed Gergel's decision to the U.S. Court of Appeals. They asked Gergel for a stay pending the appeal. He denied a stay. Then they asked the Court of Appeals for a stay. They, likewise, denied the request. On April 30, 2020, the ADSC submitted to the Appeals Court its brief of arguments against Gergel's decision. On July 2, the EDSC filed its response brief with the Court of Appeals. Now, on this Wednesday, we should get ADSC's response to EDSC's July 2 paper.

Once the Court of Appeals gets the response, they will probably decide whether to have a hearing or to go directly to a decision. Typically, a panel of three judges handles an appeal. If they schedule a hearing, the lawyers of the two sides will present their oral arguments to the panel who will ask questions. Lately, courts have gone to online hearings, for the sake of social distancing, so we should probably expect the same, that is, if the justices decide to hold a hearing. It would be open to the public. The panel would issue a written decision some time later, typically several months. 

In my view, there is little to no chance the appeals court will alter or overturn Judge Gergel's landmark decision. His Sept. 19 order was a masterpiece of jurisprudence, deeply reasoned, meticulously documented, and well-written. He added so many supporting items from the Fourth Circuit itself, that his work is virtually appeal proof. Besides, in any appeal, the onus is on the appealing party to demonstrate convincingly that the original order was erroneous. The ADSC has not done that, far from it. Their brief of Apr. 30 was amazingly thin and weak. I see no reason to think their reply brief of this week will be any different.

Bottom line---chances are very good that the appeals court will uphold Gergel.  

Meanwhile, since there is no stay in the federal case, I wonder why the Episcopal diocese cannot effectuate Gergel's decision. If the Church diocese is the historic diocese, why cannot they get possession of the property and all assets of the old diocese? I do not know the answer. What sticks in my craw the most is that the bishop who led this ill-fated experiment is still living virtually rent free ($1/yr.) in the multi-million dollar residence of the Episcopal bishop, owned by the Episcopal diocese of South Carolina. Why cannot the Church evict him from this Church-owned property? What about charging rent for his seven and a half years of occupation? I figure the rent on the bishop's residence on Smith Street would be $10,000/mo. For the 90 months since the schism, that would amount to $900,000. That's a fair bill to present to the occupant, don't you think? 

So, to quote feisty Bette Davis, fasten your seat belts. We are going to be in for a bumpy ride in the next few months. Of course, we should be used to this by now. We have been on a Mr. Toad's wild ride for seven and a half years. Do not get exhausted. Do not lose hope. Too, do not lose sight of the forest. Legal matters are moving along. Remember, the big issues have been settled. The Episcopal Church retained the historic diocese. The Episcopal diocese retained the bulk of the local properties. 

Looking back, I must confess that I underestimated the animosity of the breakaways for the Episcopal Church and the depth of their resolve to oppose their mother church. They will not go down easily in this war. They have fought tooth and nail for what they believed to be the singular right. They have spent a fortune along the way. Remember, their communicants are paying two sets of lawyers, for diocese and parish. God only knows how much money has been spent (wasted) on this foolish and needless pursuit. In the last few years, ADSC had admitted to app. $1m/yr. just for the legal costs to the diocese. If the two sides have spent $1m/yr each for seven years, that would amount to $14,000,000 in legal fees. That is probably a conservative figure. What a waste. What a shame. What a scandal. Mediation failed, twice. An offer of compromise settlement failed. This unfortunate war can only be settled in the courts. It will be, in time. All of this will come to an end one day and years from now people will shake their heads in dismay. 

Remember this war is over human rights. The Episcopal Church wants all people to have equal rights and inclusion in the life of the church. The rebels are fighting against that. They want to bar open homosexuals and the transgendered from the life of the church and to keep women in submissive roles. So, the legal war in South Carolina is just one aspect of a bigger picture. The side of human rights will win in the end because it is the right thing to do even if the end does not come easily or quickly. 

[My usual disclaimer. I am not a lawyer or legal expert. What I offer here is a layman's opinion.] 

NOTES --- 17 JULY 2020

Greetings blog reader. I have been away from my computer for a few days, so today it is catch-up time on several issues of interest and importance at the moment.

LITIGATION

As expected, Judge Edgar Dickson denied the Diocese of South Carolina's request for a reconsideration, following Dickson's June 19 Order in which he ordered the reversal of the South Carolina Supreme Court's decision of Aug. 2, 2017. EDSC filed a motion for reconsideration on June 29. On July 13, 2020, Dickson issued an "Order" of a few sentences rejecting EDSC's Motion. 

Curious to note that Dickson's rejection came quickly, just two weeks after EDSC's filed its motion. Curious too that in the meantime apparently the Anglican Diocese of South Carolina's lawyers did not file a reply brief to EDSC's motion. Why they did not file and why Dickson responded so quickly and curtly leaves one wondering what is going on in the circuit court.

See the EDSC's news release of this here .

The EDSC lawyers immediately filed "Notice of Appeal" of Dickson's Order of June 19 with the South Carolina Court of Appeals. At the same time, they filed a request for a stay with Judge Dickson, "Defendants' Motion to Confirm Stay, or in the Alternative, for Supersedeas." However, the news release also indicated that the EDSC lead lawyer, Thomas Tisdale, believed the case may go straight to the state supreme court instead of stopping in the state appeals court. At any rate, the issue would be an appeal of Dickson's Order, not a re-litigation of the original case that is now closed.

We now have two diametrically opposed judicial opinions on the church case. The SC supreme court ruled that 28 parishes were property of the Episcopal Church and that Camp St. Christopher was owned by the Church diocese's trustees. On the other hand, Dickson ruled that the 28 parishes owned their own property, and not the Episcopal Church, while the Anglican diocese's trustees own the Camp, not the Episcopal diocese's trustees. Dickson's decision is now on appeal. 

Even though I am not a lawyer, I cannot see any scenario in which a state supreme court decision, that became final law, could be permanently overturned by a lower court. If the upper court(s) should uphold Dickson, it would upend the entire judicial system of the state. This would undermine the authority of the state supreme court and mean that every one of its decisions in the future would be subject to rejection and replacement by lower courts. The effect of such would be to make the high court irrelevant. Surely, the supreme court justices would not want to destroy the authority of their very own court. It is unimaginable. The justices must defend the established court system.

COVID-19

The coronavirus continues to run rampant in South Carolina, particularly in Charleston County. 

As for the state, when we last checked (July 13), it listed 56,648 reported cases. As of this morning (July 17), it listed 64,083 cases. In four days, cases increased by 7,435, +13%. In the last week, (Jl 10-17), cases increased by 13,392, +26%. At this rate, infections in South Carolina will double within a month. 

Death numbers in the state are also increasing quickly. The total now is 1,070. Yesterday (Jl 16) the state broke the record for the most deaths in one day, 72.

In the U.S., South Carolina is now one of the dozen states with the highest rates of increases in infection and death.

The White House coronavirus task force just today listed SC and AL as among the 11 states with the fastest increases in cases and recommended these states roll back their re-openings of public places. See an article about this here .

Charleston County continues to be the epicenter of the plague in SC. In the last week (Jl 10-17), reported infections in the county climbed from 6,699 to 8,677, an increase of 1,978, +30%. At this rate, the disease will double in the country within about the next three weeks. It is spreading faster in Charleston Co. than in the state as a whole. The death number in the county stands at 81.

Horry County is also rapidly developing as a center of the pandemic in the state. It is not far behind Charleston County.

With no national or local leadership to curb the spread of this pandemic, it will only worsen. We are still many months off before a vaccine appears. No doubt, we will see the worst of this pandemic in the fall of this year.

TRUMP DESTROYS SESSIONS

Jeff Sessions used to be an institution in Alabama. Today he is a ruined man, at least poltically speaking,  thanks to President Trump. 

Sessions became the most powerful politician in the state when he was overwhelmingly elected to the U.S. Senate in 1997. He became highly popular in the state. In his last election to the Senate he did not even have an opponent. In 2016, he was actively courted by candidate Donald Trump. Sessions became the first U.S. senator to endorse Trump. The two were especially compatible on opposition to immigration, particularly that from Mexico. As a reward for his support, Trump named Sessions Attorney General. So far, so good. Then, Sessions, a man of integrity, recused himself from the Mueller investigation. Trump exploded and began a relentless campaign to denigrate Sessions for his supposed disloyalty (in not squashing the investigation). It finally worked. Sessions was driven into total humiliation. In 2018, Trump demanded, and Sessions delivered, his resignation as AG. Sessions was replaced by a die-hard Trump loyalist, William Barr. Sessions returned to AL to run for his old seat in the Senate held by Democrat Doug Jones.

Even after Trump had driven Sessions from the office of AG, his vindictiveness continued unabated. He continued to denounce Session in scathing terms and actively campaigned against him eventually endorsing Tommy Tuberville, a man who had never held political office and whose only claim to fame was having coached the Auburn University football team for a few years. In the run-off election last Tuesday, Tuberville, with strong backing from Trump, won a landslide to became the Republican candidate to oppose Jones in November. Sessions' final destruction and humiliation was complete. Once the most powerful politician in the state, he had been ruined by his experience with Donald Trump.

There are two take-aways from this incident. One is that Trump remains highly popular in the lower south, especially in Alabama. He is certain to win a landslide in these states in the November general election. The other is that Trump will apparently destroy anyone whom he deems to be disloyal. Sessions had been one of Trump's earliest and strongest supporters. He is now politically dead.

Remember friend, we are here for the living of this hour, as tumultuous and frightening as it may be. Peace. 

BISHOP LAWRENCE SIGNALS RETIREMENT

Bishop Mark Lawrence informed his diocese yesterday that he is calling for a bishop coadjutor. This is a signal that he is seriously considering retirement in the near future. Find the press release of this here .

Lawrence is 70 years old. He is not required to retire at 72, but calling for a coadjutor means he is keen to leave office sooner rather than later. The coadjutor would become the diocesan bishop upon the resignation of Lawrence. In the Episcopal Church a diocese may expect to take 18 months to put a bishop coadjutor in place. 

As Lawrence's retirement nears, it is not too soon to start looking at historical legacy. What difference did his episcopacy make? In a word, plenty. He presided over the biggest schism in the Episcopal Church in the Twenty-First Century. That is a big deal.

At this point, how one looks at Lawrence will determine whether he or she sees him as a positive or negative historical force. His followers adore him and hang on his every word. His detractors do not, to say the least. As we approach an assessment, let us begin with the empirical evidence we have on hand in the official statistics of the diocese(s).

Lawrence was installed as bishop of the Diocese of South Carolina in 2008. At that time, the diocese had 31,559 baptized members. In its latest figures (2018), his diocese listed 20,763 members. That is a decline of 10,793, or -34%. 

Communicant numbers are more revealing. A communicant is a person who attends church at least once a year. When Lawrence arrived in 2008, the DSC counted 27,670 communicants. In its latest figures (2018), his diocese listed 12,126 communicants. This is a decline of 15,544 people, or -56%. To put it simply, Lawrence presided over a diocese that lost more than half its communicants.

But, what about growth since the schism of 2012? Same downward trajectory. In 2013, the year after the break, Lawrence's diocese listed 17,798 communicants. Five years later, 2018, it counted 12,126 communicants. That is a decline of 36%. In other words, Lawrence's organization lost a third of its regular members after the schism. Even more telling is the trend of constant and relentless decline of numbers year after year.

Another way of looking at numbers is in Average Sunday Attendance, that is, how many people are sitting in the pews. In 2013, the year after the schism, Lawrence's diocese counted an ASA of 9,292. In 2018 it listed 8,875, a fall of 4%. The trajectory is the same, yearly decline.

Then, what about budget? When Lawrence arrived in 2008, the diocesan budget was app. $3m ($2,995,289). His last diocesan budget, 2019, listed $2,551,000, a decline of 9% in the 12 years. However, the 2019 budget was bloated by an unidentified gift of $543,000 for legal expenses. Removing that one-time item, would leave a budget a third less than that of 2008. At any rate, Lawrence's diocese has a considerably smaller budget than that of 12 years ago not even accounting for inflation.

Thus, the empirical evidence of membership and budget statistics show a dramatic and relentless decline in the Lawrence's diocese, most markedly after the schism of 2012.

There is a bigger picture here greater than just numbers. Lawrence presided over the largest schism in the Episcopal Church since the Civil War, 175 years ago. In all fairness to him, we must recognize that he did not make the schism by himself. In fact, the process of moving the diocese of South Carolina away from the Episcopal Church had been going on within the diocese since 1982, 26 years before he arrived. There is some evidence that suggests he was chosen by people who wanted a schism in order to carry out their pre-conceived plan of leaving TEC. If this is true, and I suspect it is, one could see him as a tool rather than as an instigator. If so, he must have satisfied the plotters well as he was richly rewarded for his leadership, and he remains highly popular in his new diocese.

Yet, looking at Lawrence's diocese today it is hard to see any success, or a bright future. Before the schism, Lawrence and the diocesan leadership of shrewd lawyers and anti-Episcopal Church zealots told their followers certain points that turned out to be untrue. They said the diocese was independent and could leave the Episcopal Church intact and at will. The federal court shot that down last September. The U.S. district judge in Charleston declared that the contingent that left the Episcopal Church also left the Episcopal diocese. They created a new entity, and must find a new name and identity. The historic diocese did not leave the Episcopal Church.

They also told the people they could leave the Episcopal Church with their local properties intact. The South Carolina Supreme Court shot that down in 2017. Even though the circuit judge overturned this recently, his Order is not likely to stand under appeal. Odds are that the state's higher courts will uphold the SCSC decision. At that, 29 parishes will return to the Episcopal Church leaving the Lawrence contingent with 6 parishes from the old diocese.

The old diocesan leaders also led the majority of the people to believe they would remain in the Anglican Communion if they left TEC. Not true, even after the new diocese joined the Anglican Church in North America. The ACNA is not now, and no doubt will never be, in the Anglican Communion. The Archbishop of Canterbury has declared it to be an independent Christian denomination outside of the Anglican Communion. The ACNA bishops will not be invited to the Lambeth Conference in 2022. The fact is that Lawrence's organization, that now calls itself the Anglican Diocese of South Carolina is Anglican in name only. It is not in communion with the Archbishop of Canterbury. It is not Anglican by the dictionary definition of the word Anglican.

Thus, the legacy of the schism is unfulfilled promises and decline. Although all of this certainly cannot be put on Lawrence himself, the fact remains he was the bishop of the diocese at the time of the schism.

What happens to the new diocese after Lawrence? The outlook is not good, mainly because it is out of step with history. It was founded to keep non-celibate homosexuals from inclusion in the life of the church. It joined a larger group devoted to that and to keeping women submissive to men. Society, even in conservative South Carolina, meanwhile is moving ever more to expanding human rights to all people. As it does, the ADSC will continue to shrink into irrelevance.

A GARDEN IN HIGH SUMMER

It is Friday, 10 July 2020, and time to get our minds off the troubles besetting us these days. If we do not take breaks once in awhile, we may too easily be overwhelmed by the gravity of it all. This is a dark hour of crisis upon crisis. We cannot make the dangers go away but we can put them in a larger setting. A good way to do that is to enjoy the beauty and wonder of nature all around us. For me, it is my botanical garden.

We have had an unusually rainy last few months. Normally, summers in the south are hot and humid with the occasional afternoon thundershower. The weeks of almost daily rain we have had made the whole garden lush, more than is typical in a high summer of the south. Of course, the rain has also brought an abundance of weeds and insects but every gardener knows how to deal with them. I'll take the rain any day.

So, strolling around my garden this week we see:

Crepe myrtle. It is one of the most common flowering shrubs of the south, and for good reason. It is the colorful glory of a southern summer. This is "Tuscarora." a large bush with red blossoms. The big green shrub is Spartan Juniper, a good selection for an upright evergreen. The palmetto is Sabal minor.  This part of the garden, the street side, has a semi-circular walk path going from trellis to trellis.

Inexpensive decorative pieces dot the garden to add interest. This Greek maiden in a shady alcove is about to be devoured by the Spartan Juniper behind her. Windmill palm is on one side, Francis Mason Abelia on the other.

The roses continue to bloom until frost although they are not as prolific after the first flush of flowering in May. This is a shrub rose called "Magic Blanket." It puts out a profusion of pure white flowers. 

Every southern yard/garden should have banana tree(s). They are easy to grow and add good interest and texture to the landscape. The large one produced a stalk of thumb-sized bananas last year but has not bloomed so far this year.

Butterfly bush (Buddleja davidii "Harlequin"). If you want to attract butterflies to your garden, give them the plants they love and a source of water low on the ground. This plant is a favorite. It puts out numerous purple flower stalks and blooms a long time. Easy to grow perennial shrub.

Althaea, aka Rose of Sharon (Hibiscus syriacus). Flowering shrub ubiquitous in the south. Prefers full sun. This one is getting too much shade but still blooms beautifully.

Abelia x chinensis, "Rose Creek." The abelia family of shrubs is one of the best for southern gardens. I have many examples in my garden. They are easy to grow and may be pruned or left to grown naturally, as this one. They are often used for hedges. I like them as specimen plants. 

Red Delicious Apple. I have two dwarf apple trees but I never get to enjoy the apples. I learned after I planted them that apples are a favorite snack of deer. I live near a wilderness area called the Talladega National Forest. It abounds in deer, black bear, wild turkeys and the like. For some reason, unknown to me, the deer have not touched my apple trees this year although I have seen deer in the garden. These apples are about half grown.

The other apple tree in my garden is Golden Delicious. Apple trees will not grow in tropical climates because they require long winter chills. They will grow in the upper south. I happen to live in an area that allows me to have both some tropical and some northern plants. Plant Zones 7b and 8a overlap here. It's a gardener's paradise. In fact, the Anniston Museum of Natural History, in my county, has the largest collection of palms in the state of Alabama. Yet, not far up the road are commercial apple orchards.

I hope you enjoyed our little stroll around my garden now in its summer glory. If you were here in person, you would enjoy the butterflies and the birds. I provide both lots of natural food and they reward me richly with color and song. I have large blueberry bushes but I do not even try to collect the berries. I leave them to the birds. They reward me with wonderful music, all day every day. How fortunate am I to be surrounded by such wonders of God's work.

Even if you do not have a garden as large as mine, and I know few people who do, you can still get out and enjoy the wonders of the world all around us. Plant flowers in your yard, maybe in a planter. Go for a walk in your neighborhood. Have a stroll in the park. Ride a bicycle. Take a leisurely car ride around a state park. Bask by the lake or beach. It will do you good (as long as you remember social distancing and face coverings).

We are in a dark hour; and let's not try to pretend otherwise. It is best to face reality. This is a hard time. We will get through it. One way we can get through it is by putting things in perspective. One way we can put things in perspective is to remind ourselves we are part of a grand order of the universe that has purpose and meaning from a power greater than ourselves. Whatever happens in our lives cannot change this. The presence of God is always with us. It is all around us if we but open our eyes and see it.

Let us keep in mind we are here for the living of this hour. Peace.     

  

THE VIEW
FROM INDEPENDENCE DAY, 2020

It is July the Fourth, 2020, the 244th birthday of the United States of America. Usually, Independence Day is a time of pleasant summer living, no-care-in-the-world bar-be-ques, fireworks, parades, that sort of thing. Not so much this year. We Americans are in a time of great turmoil. Throughout the land there is fear, sorrow, and anxiety. There is also faith and hope.

Today, America is straining under layer upon layer of crises, at least four that I can identify. First is the public health emergency created by the coronavirus. COVID-19 is spreading through the nation at an alarming and accelerating rate. Every day seems to bring new records of cases and deaths. Meanwhile, virtually nothing is being done to stop the plague. There is no national plan of action. Indeed, the Trump administration is in denial of a problem. States and localities go back and forth on policies to no effect. The country is at the mercy of an incredibly tiny organism. This pandemic will only get worse as the year goes along. We are having a big surge now in the summer. We can expect a much bigger spike in the fall. There will be no vaccine for at least the next six months, if at all. Hundreds of thousands of Americans will die of the virus before the end of the year. All of this is highly distressing.

Next, is the economic crisis. Millions of American have lost their jobs in the last few months. The unemployment rate now stands at 11.5%, four times the normal rate. Thousands of businesses have closed, many permanently. Food banks are straining to provide provisions. Government unemployment benefits expire at the end of this month for most recipients. The outlook for the American economy is uncertain at best, and disastrous at worst. Economists are telling us to prepare for a long and slow recovery.

On top of that we have a political crisis. The president is acting beyond the norms of the accepted behavior for his office. He is defiant of the established constitutional order. He has challenged virtually all the institutions of government. His administration is incompetent at handling the problems facing the country. He is clearly unpopular. Unless matters change dramatically in the near future, President Trump and the Republicans face a landslide defeat in the November elections. However, the latest fear circulating is that Trump and his acolytes will try to nullify the election, on trumped up excuses, and retain power. If this happens, it will create the greatest political crisis since the Civil War, a century and a half ago. Everyone knows, even his friends, that Trump is unpredictable. Indeed, the country has been in turmoil for the three and a half years of his presidency. There is more to come.

Then, on top of that, we have the mass demonstrations in the streets. For weeks now, countless thousands of Americans have marched in the streets of every big city, and many small ones, demanding an end to racism in America. In some cases, these have led to clashes with the police and to acts of criminal violence. Police departments have come under heavy criticism. Symbols of our racist past, as Confederate monuments, statues, and flag, have been banished across the south, and even beyond. 

So, we have four great crises at hand: a plague, economic disruption, political turmoil, and mass social unrest. Any one of them would have been a challenge. All four together may seem overwhelming.

Looking back at history, we can see that times of great turmoil were often also times of great progress, as if the old is destroyed and a new emerges from the ruins. Extreme negative and extreme positive often go hand in hand. For instance, the Black Death hit Europe in 1347. In the next few decades, a third of the population of Europe died. It was the worst public health catastrophe in history. People commonly believed it was the apocalypse, the end of the world. Yet, out of that ruin came the Fifteenth Century Renaissance, the most energetic and creative period in western civilization in a thousand years. The Renaissance was in many ways the birthplace of modern history. This revival would not have been possible without a clearing away of so much of medieval culture that came with the Black Death.

How about the American Civil War? Terribly destructive---600,000 Americans killed, thousands more maimed for life, property destruction beyond measure. Yet it gave us a tremendous burst of human rights, namely the end of slavery in the country. Four million human beings were released from bondage. The Thirteenth, Fourteenth, and Fifteen Amendments made giant strides in American democracy. Would any of that happened without the Civil War? Highly doubtful; and certainly not at that time.

What about the French Revolution? The best of times and the worst of times would fit the bill. The Revolution saw countless violent crowd, or mob, actions. It also saw government-led "Reign of Terror." At least 50,000 people were killed, many by grisly means. Heads rolled, literally. Yet, beyond the rush of death, there developed the first democratic republic in Europe. It established the ideals of liberty and equality that gradually became embedded in western culture in the Nineteenth and Twentieth Centuries. The Revolution produced a long list of reforms that transformed modern history (as abolition of slavery and equality for women). Thus, out of the violent destruction of the Old Regime, came the new world of the common man, and woman.

Think too about the Great Depression and the Second World War, 1933-1945. The Depression brought untold economic decline and misery, the War unparalleled death and destruction. Yet, out of the Depression came the principle that the government is responsible for the economic welfare of the people. Out of the War came the great victory of democracy over totalitarianism. The War also started the ball rolling on the end of racial segregation.

Thus, history is replete with examples in which times of great turmoil were also times of great progress. In the vernacular, you have to break eggs to make an omelette. We can expect the same now, even though it may be hard to imagine today what all will come out of our present crises. As far as the virus goes, it seems to me it has brought the American people together as we have not been united since the end of the Cold War thirty years ago. The virus has made us realize we Americans are all in the same boat, we are one people confronting a common deadly enemy. I suspect this is at least part of the reason why we are having such large and effective mass street demonstrations for racial justice.

The economic crisis has also brought a certain unity. Democrats and Republicans in Congress came together, a great rarity, to pass legislation bringing trillions of dollars of financial relief to businesses and workers. This affirms the Depression-era principle that it is the responsibility of the government to provide for the economic welfare of the people. 

The political crisis created by the Trump presidency has forced Americans to reassess what we want in a government and in a president as well as what we want in a society. Most Americans have repudiated Trump's narcissistic disregard of the Constitution and the norms of the presidency. I suspect this has been a motivational factor in the vast street demonstrations of late. The people are rejecting Trump's politics of division. Indeed, a sea-change is now going on in our national understandings about race, something we have been loath to deal with in the past. I expect this came out of reaction to the virus and to Trump.

Today, let us take stock and recognize our present national situation for what it is. This is a dark hour in America and in the world. Let us not try to pretend otherwise. There is plenty of frightening danger all around us. Our country is in trouble. Nevertheless, accepting reality for what it is does not require despair. We Americans have been through a lot. Over the years, we got a lot wrong, a lot---slavery, Indian ethnic cleansing, internment of Japanese-Americans, just to name the most obvious. But, we have also gotten a lot right, and we have a record of trying to make right what we did wrong, even if it is slow in coming. That is what we are doing now with racism.

So, my point of the day is that regardless of how bad the present crisis is, history tells us there will be some positive good coming out of it. I think we can see some already and I believe we will see more and more. As bad as things get, and they will get worse in the next few months, the moral of the story is, do not despair. Look for the new growth that will sprout in the ashes of the fire.

The founding fathers took a big chance two and a half centuries ago. They created a unique experiment, a nation built on the ideals that common people could govern themselves, to the benefit of both the individual and the common good. They did not know if their experiment would work. Well, it has worked. It has worked for 244 years and it is still going strong today despite the enormous threats and dangers of the hour. It worked because the mechanisms built in for progress worked. The founders did not create a perfect country, far from it. But, they did create a system that had the potential for self-improvement. They had the faith that people could make a better world for themselves and their fellow human beings. And so, America is an evolving experiment, ever moving toward a more fair, just, and free society. This is the legacy of July 4, 1776. That is reason enough to celebrate today.    

LITIGATION UPDATE, 2 JULY 2020

There was a noteworthy development in the church litigation yesterday. The Episcopal diocese of South Carolina filed "Appellees' Brief" with the United States Court of Appeals for the Fourth Circuit. This was the EDSC response to the brief of the party making the appeal, the disassociated organization calling itself the Anglican Diocese of South Carolina. The ADSC filed its brief with the federal appeals court on April 30, 2020.
[Note. Yesterday's brief is on the Internet, but is behind the pay wall of "Pacer." I cannot copy it here.]

A short recap:

Sept. 19, 2019, U.S. District Court Judge Richard Gergel issued "Order and Opinion" recognizing 1-the Episcopal Church diocese as the only legal heir of the historic (pre-schism) diocese, 2-Church ownership of names, marks, emblems under the Lanham Act (trademark), and 3-the Episcopal Church as hierarchical. Furthermore, Gergel issued a permanent injunction banning the new organization from publicly claiming to be in any way the successor of the historic diocese.

Oct. 7, 2019, ADSC announced it would appeal the Sept. 19 decision to the U.S. Court of Appeals.

Dec. 18, 2019, Judge Gergel denied a stay to ADSC pending the appeal. He also ordered enforcement of the permanent injunction of Sept. 19.

Jan. 14, 2020, the U.S. Court of Appeals, Fourth Circuit, denied ADSC's petition for a stay pending the appeal.

Apr. 30, 2020, ADSC submitted "Brief of Appellants" to the U.S. Court of Appeals.

July 1, 2020, EDSC submitted "Appellees' Brief" to the U.S. Court of Appeals.

In an appeal of a judge's order, the onus is on the party making the appeal to prove that the original order was erroneous and must be changed by the higher court. In my reading of ADSC's brief of April 30, I found nothing to show why Gergel's decision should be overturned. It was the same old arguments we have heard from day one, all those seven and a half years ago: the diocese properly seceded from the Episcopal Church, the diocese is the only legitimate heir of the historic diocese, the diocese owns the state trademarks, episcopal church is a generic term, the diocese did not violate the injunction. The paper presented only weak, unconvincing evidence supporting these assertions. The brief certainly presented nothing to compel a court to overturn Gergel's powerful decision.

The EDSC brief of yesterday effectively emphasized several important points that supported Gergel's Sept. 19 decision. In my view, the key point of Gergel's decision, and of yesterday's brief, is the declaration that the Episcopal Church is an hierarchical institution. This means it is protected by the First Amendment from interference by the civic state. Since TEC is hierarchical, it has authority over the dioceses. When the officers of the pre-schism diocese left TEC, the Church reorganized the historic diocese under new officers. The people who left TEC have no right to claim ownership of the historic diocese. Moreover, a majority of justices of the South Carolina Supreme Court declared that the Church diocese was the heir of the historic diocese and the new organization had no right to it.

In yesterday's brief the lawyers wrote:

the First Amendment independently requires this Court to accept the hierarchical Church's determination that TECSC is the continuing Historic Diocese... (p. 31)

The EDSC lawyers went on to lay out four main arguments in their brief supporting Judge Gergel's decision:

1-Under the First Amendment and the SCSC decision, the Church diocese is the only owner of the service marks.

2-The disassociated organization violated the Lanham Act by using marks owned by TEC.

3-The disassociated organization violated state laws by using marks that belonged to the historic diocese.

4-The district court was right to issue and to enforce an injunction stopping the disassociated organization from using marks that did not belong to them.

Still, it seems to me the whole case of the Church side rests on hierarchy. If the appeals court upholds Gergel, this will seal the deal. Under federal jurisprudence, and federal takes precedence over state, the Episcopal Church will be recognized in the courts as an hierarchical institution. This would mean it has control over its dioceses. Of course, if ADSC loses in the appeals court, it could appeal its loss to the U.S. Supreme Court. So far, SCOTUS has shown no interest in wading into Episcopal Church business.

What next in the federal appeals court? Next, the ADSC will have an opportunity to make a reply to yesterday's paper of EDSC. The deadline for this is July 22, 2020. I will return with commentary on this when it appears.

After that, the appeals court in Richmond VA will decide whether to hold a hearing or to go straight to a decision. If it holds a hearing, it would be livestreamed by audio. In each of the last few times the appeals court took up the church cases from SC, a panel of three judges heard oral arguments and issued a written decision later. So far, all decisions from the U.S. Court of Appeals have been favorable to the Episcopal Church. There is no reason to think this will change. Judge Gergel wrote his Sept. 19 decision to make it virtually appeal-proof. He cited case after case in which the Fourth Circuit had already decided on certain a propos points. In other words, he has already done the work for the appeals judges.

In my view, there is very little chance the appeals court will change Gergel's landmark decision. The sooner the Church gets over this roadblock, the better. Of course, the losing side will not go down easily. They are throwing up every roadblock imaginable to forestall the inevitable. Eventually they will run out of options. The breakaways have already lost the war, which they themselves started, whether they want to recognize reality or not. The Episcopal Church won in state and federal courts.

NOTES, JULY 1, 2020

Greetings, blog reader, on this first day of July in the year 2020. A great deal is happening all around us these days, so much that it is hard to keep up with it all. Nevertheless, we shall try.

First, on the pandemic. It is getting worse by the day. Let us look at the data provided by our usual source, Worldometers. We will continue considering the numbers by the week, in order to get some sense of the trajectory of the spread of the coronavirus.

As for new cases in the world, last week (June 24 to July 1) saw 1,232,312, for a rise of 13%. This is a steady rise. Two weeks ago (June 10-17) there were 943,361 new cases (13%). One week ago, (June 17-24) there were 1,093,387 new cases (13%). This over the past three weeks, the disease is spreading apace at the same rate. Of course, this is uneven with some places seeing big spikes, as Brazil, and other places seeing declines.

As for deaths in the world, last week saw 34,219, a rising rate of 7%. Two weeks ago it was 32,540 (8%). One week ago it was 33,727 (8%). Again, numbers of deaths are steadily rising in the world.

The United States continues to be the epicenter of the pandemic as it has been for several months. Last week, there were 303,503 new cases reported in the U.S. This was a rising rate of 13%. This is an alarming jump from two weeks ago (162,745 cases, 8%), and one week ago (216,007, 10%). Both the numbers of cases and the rate of spread are climbing sharply. The total number of cases reported in the U.S. is now 2,727,996.

As for deaths in the United States, there is also cause for alarm. Last week (June 24-July 1), 6,647 Americans died of COVID-19. This was a rising rate of 5%. This is a dramatic rise from the week before (4,343 deaths, 4%) and the week before that (4,982 deaths, 4%). Both the numbers and rates of mortality are climbing. As of today, 130,123 Americans are reported to have died of COVID-19. The present mortality is app. 1,000/day.

South Carolina is cause for special alarm. Last week (June 24-July 1), there were 9,786 new cases, for a rising rate of 37%. This is for one week! Note this is far above the national average. In the week of June 10 to 17, SC reported 4,762 cases, 31% rise. The next week, June 17-24, SC reported 6,623 new cases, 33%. Thus in the last three weeks, SC has seen a dramatic spread of the disease in the state. As for the whole month of June, the number of new cases tripled in SC (app. 12,000 to 36,000). All signs indicate this will only continue. At this rate, SC is heading towards a medical emergency. 

As for deaths in SC, the total is 739. In the last week, 66 people in the state died of the disease, a rising rate of 10%. The is about the same number and rate of the past few weeks. There is no abatement in the mortality of this disease in SC. 

Alabama is a similar tale. The week of June 24-July 1 saw a big spike in new cases, up 6,948, or 22%. In the month of June, Alabama doubled its number of cases. As with SC, this is cause for alarm. AL now has 38,045 cases. There were 86 deaths in the state in the past week, for a total of 950. In the last month, 300 people died in the state of the disease.

All together, the new data show clearly that COVID-19 is spiraling out of control in the United States, particularly in our southeastern states as South Carolina and Alabama. The disease is running rampant in our area. Of course, some states have it even worse, as FL, GA, and LA. 

What are the authorities doing about this? I do not see any effective measures being even discussed let alone enacted to curb the spread. Thus, there is no reason to think this disease will not continue to spread like wildfire until a vaccine appears. Dr. Fauci said a few days ago, the earliest we could get a vaccine is early next year. We have at least six months to go. Do the math to see a projection of new cases and deaths. We are in for worse to come, much worse. There is no national program to bring the disease under control, likewise in out local states. We are the mercy of an incredibly tiny organism that has gained control of our lives. We will have to see it out.

Now, switching to another topic, litigation. 

As we know, the Episcopal diocese asked Judge Dickson to reconsider his outrageous Order of June 19 in which he purported to overturn the South Carolina Supreme Court decision of Aug. 2, 2017. In my opinion, the EDSC lawyers turned in an excellent paper last Monday laying out strongly their case. Now, we can expect the disassociated organization's lawyers to file a response to this. I imagine this will come within the month of July. Then, I think we can expect Judge Dickson to reject EDSC's motion for reconsideration. With that, the way will be clear for EDSC to appeal Dickson's Order to a higher court. 

The court above Dickson is the South Carolina Court of Appeals. However, if both sides agree, they could skip over this and go back to the state supreme court. This was what happened in 2015 after Judge Goodstein's outrageous decision. Both sides agreed to skip the appeals court and go straight to the SCSC. Seven months later, the SCSC held a hearing. Then, it took them nearly two years to publish their decision. 

It seems to me the EDSC side should go to the SC Court of Appeals. Surely that court would uphold the SCSC decision and order Dickson to implement it in his court. If the breakaways appeal that, which I am sure they would, EDSC would be on a much stronger footing when it appears before the SCSC justices, if they agree to take the case at all. 

On the other hand, it seems to me to be an advantage to the breakaways to go straight to the SCSC. That court is not the same as the one that issued the decision of 2017. Two justices have retired (Pleicones, Toal). They have been replaced by two new justices. One of the five, Hearn, has agreed to remove herself from the case. No one knows how the four others would vote, but perhaps they could be persuaded to side with Dickson. It is hard to imagine that the state supreme court would nullify an earlier SCSC decision, but anything is possible. Litigation in SC has been a wild ride so far; and there is still a long way to go. 

One has to bear in mind that SC is one of only two states in the U.S. (VA is the other) that allows the state legislature to elect all state judges/justices. State judges are elected by majority vote of the legislature; and they serve terms that would bring them up for re-election. Election and re-election would naturally exert political pressure on the judges. Politics and judgeships are traditionally intertwined in SC. Thus, there is no telling what the new state supreme court would do with this case. Still, it is hard to believe any state supreme court would discard an earlier decision of that court.

As for the United States court of appeals, we are awaiting the briefs of both sides. Then, the court will decide whether to have a hearing. If so, it will be livestreamed by audio. This court has already weighed in twice in this case (ordering the district judge in Charleston to get on with it). They did so expeditiously. We should expect the same this time. We will probably get a decision from the U.S. Court of Appeals before the end of the year. I would bet my bottom dollar they will uphold Judge Gergel's decision which recognized the Episcopal Church as hierarchical and the church diocese as the only heir of the historic diocese. The disassociated organization is a new creation formed in 2012 at the schism.

All of this seems to be a lot of heaviness to take. It is hard. There is cause for worry all around us. But, let us not be disheartened. There is also good news, if we look for it. For instance, just last Saturday, the diocese of Alabama ordained and consecrated a new bishop coadjutor who just happens to be a woman, the first bishop to be a woman in the history of the Alabama diocese. She will become the diocesan bishop at the end of this year. This is cause for rejoicing. It certainly was for me. Moreover, there is a sea-change going on in America about racism. Just last Sunday, the last state to honor the Confederate flag voted overwhelmingly to remove it. So see, things do change for the better. Bear that in mind as we head into another week of worsening health, economic, and political crises in America. Do not let the fear of the moment overtake the hope of a better day.

Make no mistake about it, we are in a dark hour. No one asked for this. No one made it. Yet, here we are, and here we are called to live this hour as the Christians we claim to be. Tomorrow I turn 77 years old. I have seen enough crises in my lifetime, from the end of the Second World War onward, to know we will get through this one too. This is called faith. Peace.