A COMMENT ON THE US SUPREME COURT DENIAL

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

On November 3, 2014, the U.S. Supreme Court announced it had denied the Episcopal Church's petition for a writ of certiorari. That meant it will not consider the Church's appeal of the Fort Worth case. What does this mean for South Carolina?

Of all of the four earlier cases where Episcopal dioceses claimed to have "disassociated" from the Episcopal Church, that of Fort Worth was most similar to South Carolina. Fort Worth had been a highly traditional diocese for many years (actually more reactionary than South Carolina). In fact, it was one of only three dioceses of the 110 in the Church to refuse to admit women to Holy Orders (San Joaquin, Mark Lawrence's home diocese, and Quincy were the others). At least in South Carolina there were a few female priests and deacons although the power structure was and is overwhelmingly male. As in South Carolina, the bishop, Jack Iker, refused to submit a formal renunciation of orders or a resignation. Instead, as Lawrence, he declared the diocese independent of the Episcopal Church with himself remaining as the bishop. As with Lawrence, the presiding bishop interpreted Iker's words and deeds as de facto renunciation of his ordination in the Episcopal Church and issued a release. Both Iker and Lawrence denied they had renounced their orders and refused to accept any Episcopal Church actions against themselves. Both were deposed by the presiding bishop and were not removed by the House of Bishops as were the cases of Schofield of San Joaquin, and Duncan of Pittsburgh. Lawrence, like Iker, kept the titles, rights, and properties of the old diocese. Each man persisted in calling himself the Episcopal bishop and his group the Episcopal diocese.

On litigation, however, the secessionist diocese of South Carolina was much more assertive and aggressive, suing the Church in a chosen court before it could reorganize the diocese and masterfully claiming the legal field which it has dominated ever since, for nearly two years. In Fort Worth there was first a court decision in the Church's favor, then one in the separatist diocese's favor, then the Texas state supreme court ruling. It said that the case had to be sent back down to the lower court to be judged on the principle of "neutrality."

The South Carolina court is also following "neutrality." This is the principle that the dispute must be judged only under state property laws, not as a religious dispute, and that both sides will be treated neutrally, or equally, under state laws. In fact, this gives a great boost to the separatist side. The Episcopal Church claim is that this whole matter is a religious dispute and should be left to the Church as an internal problem within a hierarchical institution. Neutrality invalidates that. If the secessionist diocese can prove it is an independent and separate legal entity under state law, removed from the national Church, and the court will accept this retroactively, then the diocese can maintain its possession of the rights, titles, and properties. In the circuit court trial last July, Judge Goodstein repeatedly invoked neutrality.

At the moment, South Carolina is awaiting two separate legal initiatives. In the end of the state circuit court trial in July, Judge Goodstein said she would release her judgment after ninety days. This could be at any time now. However, it may take much longer than ninety days to wade through the ocean of transcripts and exhibits (evidence) which run to countless thousands of pages. She herself said the case was very complicated and that she had a lot to learn about it.

The second legal path is in the U.S. Fourth Circuit Court of Appeals, in Richmond. On February 5, 2014, the Episcopal Church diocese of South Carolina filed an appeal of Judge Houck's ruling against the Church diocese. The diocese filed a brief in the court on April 7. The independent diocese of South Carolina then filed a brief in response. There has been no indication at all as to when the U.S. appeals court will issue an order. It could be at any time.

The U.S. Supreme Court has refused to take up the Episcopal Church appeal. At the moment there is no new initiative on the horizon although one could appear at any time. The Court did not give an explanation for the denial, but it may well have been reluctance to interfere with ongoing litigation between a state supreme court and a lower court, as was the case in Texas. Thus, the denial may have been more from procedure than principle. In future, the Court may be willing to take a case that clearly involves the rights of a hierarchical religious institution to govern itself, and/or involves the application of neutral principles, even retroactively, with such an institution.

As for South Carolina, the indication in the state circuit court was to favor the independent diocesan side. I expect Judge Goodstein will rule in their favor. The U.S. appeals court is a mystery that no one can predict. That court, however, has a majority of Democrats on the bench and has recently taken a decidedly progressive posture, as in its rejection of the Virginia law against same-sex marriage, a decision the U.S. Supreme Court refused to consider and therefore let stand.

At any rate, the litigation in South Carolina is most likely to drag on for years. Judge Goodstein's decision will be appealed by whichever side loses. That probably means another several years on appeals. At the moment there is no end of litigation in sight.

If the U.S. Court of Appeals refuses to intervene, I wonder if there could be an out-of-court settlement in South Carolina. After all, there is precedent for such. Several times there were possible compromise settlements offered in the diocese v. All Saints, Waccamaw case although none was accepted. The Church diocese has not said it demands the local parish properties back. In spite of the independent diocese's claims, the Episcopal Church and its diocese have made no effort to "hijack" the local church properties. The real issue of contention is on the diocesan assets. This could be negotiated.

If I were advising one of the two sides in South Carolina, I would say that once the circuit court decision comes down and once the U.S. Appeals Court rules, meet the other side and negotiate for a reasonable settlement. This would require compromise which is always give-and-take. Reasonable people can make reasonable agreements. It would end the unchristian lawsuits, save both sides untold dollars in lawyer fees, and promote harmony between the now-contentious Christian denominations.

What do you think? E-mail me at ronaldcaldwell1210@gmail.com