FORT WORTH AND THE U.S. SUPREME COURT, 7th edition (October 25)

By Ronald J. Caldwell, PhD, Professor of History, Emeritus

The United States Supreme Court website (www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-1520.htm) reveals that the Court has issued to the separatist diocese of Ft. Worth a request for a response to TEC's June 19 writ of certiorari petition to the Court. The request from the Court happened on July 28, 2014. The separatist diocese has 30 days (until August 27) in which to make a formal response in the U.S. Supreme Court.

This development is significant for two reasons, 1-the Supreme Court has responded positively to the Episcopal Church's appeal, although only in a preliminary way, and 2-the separatist diocese of Ft. Worth's strategy of ignoring TEC's appeal to the Supreme Court backfired.

On June 20, 2014, the separatist diocese (that goes by the contradictory name "Episcopal Diocese of Fort Worth" even though long ago they very publicly proclaimed their complete separation from the Episcopal Church) had announced "Diocese will waive response to TEC's U.S. Supreme Court  appeal," (www.fwepiscopal.org/news/supremecourt.html). In the news release, the diocesan leaders proclaimed "Our attorneys believe there is little chance the Court will review our case...To speed up this process, the Diocese plans to waive a response to TEC's petition...That way the petition goes to the justices' chambers for a potential denial in the near future." They did indeed make a formal waiver of response to the Court on June 23. However, they were wrong in their over-confidence. Their gamble failed. In fact, the appeal from TEC was backed-up by several major groups that filed amici curiae ("friends of the court") briefs with the Supreme Court on July 21: the Episcopal Church in South Carolina, United Methodist Church, the Presbyterian Church (USA) and the Greek Orthodox Church. As of now, the separatist diocese has no choice but to file an official response to TEC's petition of appeal to the Supreme Court.


This case is in the preliminary stage called "Cert Pool." When a petition is first presented to the Court (as this one was on June 19), it goes to a pool of the law clerks of the justices (each of the nine justices has four clerks, or lawyers, who work as assistants; one justice refuses to participate in the Cert Pool, thus 36 clerks in all serve in the Pool). Each clerk is assigned petitions at random. The clerks have a winnowing out process in which they sort through the mountain of petitions and choose which ones they think need more information and merit review by the justices. The clerk writes a "Memo" that is sent to all nine justices summarizing the case and its merits. The decision to take the case is entirely up to the justices. What is happening now shows that the clerk who received the TEC petition decided it had merit and needed more information. In a sense it cleared the first hurdle (Cert Pool) of the Supreme Court. That is itself is an accomplishment. The case is now on the official list to be considered in the next Conference of the justices of the Court, scheduled for September 29 (see https://certpool.com/conferences/2014-09-29 ). At the Conference, it will be one of the "cases active." The justices will then consider and decide whether to take the case. This means, at the very least, the justices of the Supreme Court will mull over the merits of taking TEC's appeal. In the past few years they have accepted about one per-cent of all petitions sent to the Supreme Court (about 100 out of 10,000; most were discarded in the Cert Pool and did not make it to the Conference stage). The justices choose cases they think relate to important constitutional questions. Sometimes they hear cases that have had conflicting judgments in state courts, as long as they involve national constitutional issues. TEC is arguing its side as a constitutional issue, in fact, the First Amendment. If the justices agree to take the case, it would mean they see it as a federal, or national issue. TEC sees the issue as a national one; the separatists see it as a local one of property rights.


Coming on the heels of the disastrous courtroom brawl in St. George, this is good news indeed for the partisans of the Episcopal Church. It means the Supreme Court is one step closer to accepting the appeal of the Episcopal Church. A favorable ruling from the Supreme Court would, of course, change everything.

Now, we will await the Ft. Worth secessionists' response in the Supreme Court, due by August 27, and TEC's after-response, due in September. Then, we will see if the justices decide to take on TEC's petition for a final ruling by the majority of the nine justices of the U.S. Supreme Court. Take heart, good Episcopalians. I sense the dawn is breaking in the darkness of the eastern sky.


Read Steve Skardon's informative and thoughtful review at www.scepiscopalians.com


UPDATE --- (August 21):     On August 19, the U.S. Supreme Court issued an order extending time for the secessionist diocese to file a response from August 27 to September 26, 2014. See the official web site of the Supreme Court given in the first sentence above. Apparently, the extension means that the case will not go to conference as previously scheduled on September 29. Supreme Court rules hold that "cases are not placed on a Conference list sooner than 14 days after a brief in opposition is filed, unless the petitioner expressly waives the 14-day waiting period."


UPDATE --- (August 28):     On August 27 another party entered an amicus curiae (friend of the court) brief in support of the Episcopal Church side of the Fort Worth appeal to the Supreme Court. This adds to the earlier briefs from the Episcopal Church in South Carolina, the United Methodist Church and the Greek Orthodox Archdiocese. The new amicus brief was filed by The Rutherford Institute. This non-profit corporation based in Charlottesville, Virginia, is famous for defending civil rights in legal matters, particularly religious freedom. Amici briefs are usually filed after the Court has decided to take a case. It is uncommon to have briefs filed at the Cert Pool stage and even more rare to have a host of them. This is bound to influence the justices to give the most serious attention to the Episcopal Church case. More about this later.


UPDATE --- (September 4):     On August 27 yet another party entered an amicus curiae brief in support of the Episcopal Church side of the Fort Worth appeal to the Supreme Court. This one is from the African Methodist Episcopal Church. This brings to five the number of amici briefs before the justices: The Episcopal Church in South Carolina, the United Methodist Church, the Greek Orthodox Archdiocese, the Rutherford Institute, and the African Methodist Episcopal Church. All of these briefs are available on the Episcopal Church in South Carolina's website (www.episcopalchurchsc.org ).


UPDATE --- (September 29):     On Friday, September 26, the separatist diocese of Ft. Worth filed a response brief with the Supreme Court. The case has been removed from the list to be considered in the Sept. 29 Conference of justices. It will be mid-October before the Court will announce the date of the Conference when the justices will decide whether to take the case.


UPDATE --- (October 25):     On October 14 the Episcopal Church parties filed a reply to the Sept. 26 response of the separatist diocese. On October 15 the case was distributed for the justices' Conference of October 31 (https://certpool.com/conferences/2014-10-31 ). Therefore, on Friday, October 31, the justices of the U.S. Supreme Court will decide whether to accept the Episcopal Church's petition. The news of the decision will probably be released the following Monday, November 3. At long last we will all know whether or not the U.S. Supreme Court will consider the Episcopal Church's appeal of the Texas ruling. 

BAD NEWS FOR THE INDEPENDENT DIOCESE

By Ronald J. Caldwell, PhD, Professor of History, Emeritus

This has been a week of bad news for the independent diocese of Mark Lawrence. Two items in particular struck at its creative cause and ongoing identity: the U.S. Supreme Court action concerning same-sex marriage and a pronouncement of the Archbishop of Canterbury.

The Supreme Court action has been all over the media outlets. In effect, the Supreme Court has validated lower federal courts that had overturned numerous state laws banning same-sex marriages. In other words, the Supreme Court has recognized nationally the right of same-sex marriage. The Court let stand the ruling of the Fourth Circuit Court of Appeals that overruled the Virginia state law against same-sex marriage. Since the Fourth Circuit includes the state of South Carolina, the logical conclusion is that state laws against same-sex marriage in South Carolina have been or will be overturned. Indeed numerous same-gender couples recently registered for marriage licenses in Charleston. See the Post and Courier article of Oct. 9, "S.C. Supreme Court Puts Gay Marriage Licenses on Hold." The conservative SC state supreme court has temporarily banned same-sex marriages, something that is certain not to last long. In the near future, every state of the Union will allow same-sex marriage.

As I have said repeatedly, my historical research has shown that homosexuality was the driving issue, or "wedge" issue that made the "disaffiliation" of the majority of the old diocese from the Episcopal Church. However much the leaders of the departed diocese may now deny it, the facts of history on this are very clear. The leadership of the pre-schism diocese emphasized homosexual and transgender issues among the innately conservative majority of communicants of the old diocese. It was the Episcopal Church's General Convention of 2012 resolutions on the blessing of same-sex unions and on transgendered rights that led to Lawrence's and the Standing Committee's final decision to leave the Episcopal Church at the first opportunity, which they did on October 15, 2012. 

Reactionaries (conservatives, orthodox, traditionalists) would like a church that condemns homosexuality and sex change. They believe gender is predetermined by God who assigns it to each person. They see it as immoral and sinful for people to behave in any but heterosexual ways. Meanwhile, the mainstream of the Episcopal Church is seeking avenues to minister to, rather than simply condemn, a changing society and culture. The Church has taken a bold stand for the equal treatment of homosexual and transgendered persons. To put it simply, the Episcopal Church is on the side of history while the independent diocese is trying the impossible task of fighting against history.

Western civilization is in the midst of a rapid sea change of attitudes toward individual freedom and sexual expressions. Even traditionally conservative European countries have recognized equal rights of homosexual persons, including marriage. As we know very well from the news, marriage equality is sweeping America, and doing so rapidly. Even the 5-4 conservative Supreme Court has played its part. Nate Silver, the great statistical guru, has clearly documented this monumental change in the nation. Even in highly conservative South Carolina, the majority of people will support it within a decade. In time, the independent diocese will have a harder and harder time attracting young people who overwhelmingly oppose discrimination (perhaps this is why the independent diocesan leaders are trying to cover up their roots now). In time the independent diocese will age and shrivel. This is all bad news for a local institution that was created in a campaign to oppose rights for homosexual persons and transgendered people in the church.

The second piece of bad news came in an interview of the Archbishop of Canterbury. See the Post and Courier article of Oct. 9, "Archbishop Says ACNA Not Part of the Anglican Communion." See also the remarks of Steve Skardon at www.scepiscopalians.com . The Archbishop announced that the Anglican Church in North America (ACNA) is not an Anglican church, at least not one recognized as Anglican by the head of the Anglican Communion, the Archbishop of Canterbury. The Episcopal Church is the only official province of the Anglican Communion in the U.S. This was particularly stinging as it came on the eve of the much-publicized installation of the new archbishop of ACNA to replace founder Bob Duncan. The right-wing blogosphere has exploded in wrath against the Archbishop as could be expected. ACNA is a self-created schismatic denomination of disgruntled former Episcopalians who left a Church that had accepted openly homosexual persons as bishops and elected a female primate. ACNA has been recognized as the only legitimate Anglican province in North America by GAFCON which itself is a self-made alliance of conservative Anglicans, based in equatorial Africa, rallying to oppose the equal rights that are flowing through the mainstream of Anglicanism. Too bad for ACNA and GAFCON that the Archbishop has now trumped them.

Of course, the independent diocese in SC has not joined ACNA, for reasons not apparent. Instead, Lawrence and his friends in the GAFCON-allied group called "Global South" have drawn up a strange new scheme for "oversight" by the primates' council of Global South. To this day that scheme remains a complete mystery. Not one detail of it has ever been released to the public. In the P & C article, Jim Lewis said the deal was "to establish a direct connection to the larger communion through a recognized body."  Huh? What "recognized body"? Global South is not "recognized" by the structure of the Anglican Communion. It is a self-created body without any legitimacy at all in the AC. In reality, the independent diocese is suspended in nothingness. It has no official connection to the Anglican Communion. In short, the Lawrence diocese, as ACNA, is not in the Anglican Communion. It is not the Episcopal Church in lower South Carolina and it is not in the Anglican Communion no matter how many times its spokespeople say it is. In time, its communicants will gradually realize this and come to terms with what has happened to their venerable old church. It is just a matter of time. 

So, the news this week has not been good or promising for the independent diocese led by Mark Lawrence. History is against it. The Archbishop of Canterbury is against it. Where it goes from here only time will tell.


The quarrel of whether to grant rights to homosexuals has really passed in western civilization. We have moved beyond it. Only parts of the Third World, particularly equatorial Africa, are still fighting it. As a contentious issue on the world stage, homosexuality is fading away, and quickly. In years to come, even South Carolinians will wonder, What was all the fuss about in the first place? That is the way we look at the issue of racism now. Not everything we do is right. Not everything our ancestors did was right. We have to accept that as part of our Christian religion. There was only one perfect person, and He lived on earth a very long time ago. We are not perfect.


In time, I think the prodigal communicants of the separate diocese will also move beyond the social and cultural issues that have bothered them so much. Once the homosexuality matter is out of the way, they will realize that they are still of the  same old religion, as South Carolinians did when they returned to the Episcopal Church after the Civil War. It should be noted that the independent diocesan leadership has adamantly insisted that only the Episcopal Church prayer book be kept in use in services. Beneath all their protests, they know they are still of the same religion. The issues that triggered the unfortunate and needless schism of 2012 were social and cultural, not religious. Down the road, no one can know how far, I believe there will be a quiet reunion of the now-broken church. The reactionaries will have had their starring roles in the stage, made their statements, gotten everything off their chests, and be ready to move on to the bigger issue of representing the expression of legitimate Anglican Christianity in the Low Country. I believe too that the Episcopal Church will make internal positive changes. This may be the good that the schisms produce. In the end, a stronger Church will emerge as the unpleasantness passes and South Carolinians return to being the gracious, mannerly people of cordial good will they have always been in their hearts. That day cannot come too soon.


I would like to know what you think.  e-mail me at ronaldcaldwell1210@gmail.com .

THE TRIAL RECORD

By Ronald J. Caldwell, PhD, Professor of History, Emeritus

The entire official transcript of the Circuit Court trial of last July is now freely available on the Internet. Holly Behre has generously provided it on the Episcopal Church in South Carolina's website:  www.episcopalchurchsc.org/july-2014-trial-in-state-court.html . The files are by day. The full transcript runs to 2,523 pages. Anyone with enough paper and toner can have the complete transcript.

Three eye-witnesses gave daily reports on the trial proceedings, Holly Behre for the Episcopal Church in South Carolina, Jan Pringle or Joy Hunter for the independent diocese, and Steve Skardon. All of these are available on their websites. Behre provided her daily reports on the same page as the transcript as given above. Pringle and Hunter posted their daily reports on their website: www.diosc.com . Skardon gave his accounts on his website: www.scepiscopalians.com . All of these reports are still available on the websites. 

If one wants to know what was actually said in the trial, one can now read it word-for-word in the transcript. If one wants to know what the pro-Episcopal Church side thought about the trial daily, one can read Behre and Skardon. For the pro-independent diocesan viewpoint, read Pringle and Hunter.

We all owe a debt of gratitude to Holly Behre for giving us the court transcript.