A DECEMBER DECISION?
2nd Edition (Dec. 6)

Will the South Carolina Supreme Court give us a decision on the Church case this month? That is certainly the question on everyone's mind these days. This blog has been barraged with hits in the last few days, I suppose by people seeking information on this. So, for whatever it is worth, here is my take on where we stand now.

At the time of the hearing, September 23, I thought there was a good chance the court would issue its opinion before the end of the year mainly because the Chief Justice, Jean Toal, is retiring on December 31 and she had shown herself to be very much in control of this case. This may well be the signature decision for which she will be remembered in her long career on the bench. Moreover, she had authored the All Saints/Waccamaw decision of September 2009 in which the court recognized the local property for the parish since the diocese had granted the parish a quit claim deed before the Dennis Canon was created. The diocese, led by Bishop Lawrence, did not appeal that decision to the U.S. Supreme Court. The decision still stands as the only final court ruling in the U.S. favoring the local entity in a property dispute with the Episcopal Church/diocese (others are on appeal). Not one other state in the nation has recognized the validity of the All Saints decision which is rarely ever cited in courts around the U.S.

Two major points came out of the Sept. 23 hearing. First, the court dismissed the Goodstein decision of Feb. 3 both for the way the trial of July 2014 had been conducted and for the conclusions of the Order. Second, Toal made it clear the All Saints decision did not necessarily apply to the present case. The Church lawyers had asked the court to act de novo, that is, anew to discard Goodstein's order and write a new decision on the case. That seemed to be the court's attitude.

The court could issue its decision at any time. It is under no time constraint. The gap time between oral argument and written decision varies widely from a year to a few months. This depends on many factors such as the size and complexity of the case.

The Church case is probably the largest, most complicated, most difficult and most important case this court has faced in many years. It involves fundamental issues of constitutionality as well as complicated questions of corporate and property law. No doubt it will require a great deal of work on the parts of the justices and clerks to finish a thorough review and write a proper decision. The justices need to get it right, as opposed to the embarrassing failure of the 2009 All Saints decision. This should not be a rushed-up decision.

As far as time of the disposal of cases goes, a quick survey of the last three months (September 1-Dec. 2) shows us some interesting trends. The court has rendered 28 decisions. Some of them were relatively quick formalities. For disbarment or reprimand of lawyers, 5 cases were settled, all unanimous against the lawyers in questions. For dismissal of certiorari, 8 cases were settled, all unanimous. That means only 15 others cases were settled by written decision. The time gap between oral argument and written decision varied from 1 year to 3 months. The larger and more complicated the case, the longer the time. It is interesting too to look at the agreement/disagreement ratio among the justices. The vast majority of the cases settled were by unanimous agreement. When dissent occurred, it was often from Justices Pleicones and Kittredge. The Chief Justice, Toal and Justice Hearn disagreed only once. This is important given the similarity of their views in the Sept. 23 hearing. 

What about the backlog of cases? The court website lists the cases heard in court and also the cases settled by written opinion. If we look at the cases heard from April 1, 2015, to the time of the Church hearing on Sept. 23, and still pending in the court, we find 45. In other words, there are at my count 45 cases ahead of the Church case just going back to April 1. There would certainly be more before that still pending. Of course some of the ones pending are relatively simple formalities.

All of us are anxious to get a decision  There is an enormous amount riding on the outcome. However, it seems to me at this point there is a better than even chance we will not get a decision soon. Three months after the hearing is not a long time in court life. The average length of time between hearing and decision is 6 months. Given the nature of this case, one can reasonably expect the justices to take longer than that. 

After all, we want the court to get it right. This will be a highly important decision not just for the parties in South Carolina, but for the whole nation. This will be the first time a state supreme court has ruled on the question of the relationship between the Episcopal Church and a local diocese. It will stand as law until and unless it is superceded by a U.S. Supreme Court decision. The South Carolina Supreme Court has on its shoulders a huge responsibility. Not only are we watching and waiting, so is the nation, and to some extent the world.

The court posts its decisions on its website, on Wednesdays. The next posting will be Wed., December 9. The address is: www.judicial.state.sc.us/opinions/indexscpub.cfm .






SECOND EDITION (Dec. 6).    Chief Justice Jean Toal is receiving a good deal of attention on the eve of her retirement. Here are two articles that may incidentally shed some light on the Church case:


"'Force of Nature,' SC Supreme Court Chief Jean Toal Strode through History," by John Monk, The State, Dec. 5, 2015. www.thestate.com/news/local/article48242630.html .


"Jean Toal: Lawyer, Legislator, Chief Justice-Mentor," The State, Dec. 4, 2015. www.thestate.com/news/local/article48242720.html .


Both articles describe a new book about Toal, Madame Chief Justice, Jean Hoefer Toal of South Carolina. USC Press. 189 p. This is a collection of 23 essays. One was written by Blake Hewitt. Remember him? he was the young man who presented the Church's oral argument before the court. Turns out he was once a clerk of Toal. At the time I wondered why he had been chosen to make the case. Alan Runyan is not the only one who can come up with clever tactics. Another article was co-written by Walter Edgar. One may recall in the Sept. 23 hearing, as Toal shredded Goodstein's decision, she seemed particularly offended by the shabby treatment to which Edgar had been subjected in Goodstein's courtroom. Edgar is almost universally revered as the greatest living historian of South Carolina (he is also a devout and loyal Episcopalian). 


My observation of the hearing, and a brief review of the decisions of the last several months, suggests to me a close working relationship between the two women justices, Toal and Hearn. Of the 28 decisions the justices handed down from Sept 1 to Dec. 2, they were together on 27 and apart on 1. Toal, Beatty, and Hearn were most often together. The other two, Pleicones and Kittredge showed a more independent spirit. As everyone saw in the hearing, Hearn is strongly on the Church side. If the Toal-Beatty-Hearn bond holds up, that bodes well for the Church case. It is inconceivable that Hearn would agree to anything against the Church's interest.


Regardless, one point is absolutely clear. This is Toal's case. She was in control of the hearing from first to last. Toal was the dominant personality in the entire courtroom. She spoke more than anyone. She had obviously prepared very well and had mastered a great deal of the mountain of complicated material in the background. She asked the most questions, made the most comments. One can only assume she dominated the private discussions about the decision too. Even if the decision comes out long after she retires, it will reflect her "force of nature" personality. This will be her last great opinion as Chief, and possibly the most consequential one she has ever handled.        

        

THE END OF A CHAPTER

Today, Sunday, November 29, 2015, the First Sunday in Advent, marks the end of a long chapter in the history of the Episcopal Church. It is the moment of a landmark event, the start of same-sex marriage in the Episcopal Church. Whether one is celebrating or weeping depends on which side of the fence one is on. I am celebrating.

This road to get to this day has been a long and tortuous one. In the big picture, one should recall that the first half of the twentieth century was consumed with defending democratic principles, Liberty, Equality, Fraternity, the French would say, that is freedom, equal rights, and the common bond of all human beings. The end was the colossal success of democracy over the anti-democratic forces in the world, most importantly fascism. After peace, the great democratic impulse turned to the liberation of the elements of society that had been historically denied their democratic rights: first blacks, then women, and finally homosexuals. What we have today is the final victory of that long and great crusade to extend democracy in America to all the people. The last barrier has fallen.

Of all the great American religious denominations, the Episcopal Church was most affected by this great democratic movement. Once a rather conservative, stodgy religion of repetitious archaic liturgy mostly representing the entrenched elite ruling class, the Episcopal Church made a conscious decision to embrace with all its might the new crusade after the Second World War (what I call "horizontal" religion). First it campaigned for Civil Rights. By the 1970's it turned to the issue of the role of women in the Church, particularly whether women should be allowed into Holy Orders. By 1976 that was settled. At the same time, a new prayer book came along to be adopted in 1979. By then, far-right conservatives were peeling off the Church in disgust.

The issue of the interface of the Episcopal Church and homosexuality first appeared in 1976. In 1979, General Convention passed a resolution saying it was "not appropriate" to ordain practicing homosexuals. "Practicing" referred to openly homosexual persons such as those living with a same-sex companion. (Closeted homosexuals have been ordained forever; some people believe St. Paul was one). The conservative Episcopalians believed they had won the fight and continued believing such through the 1980's.

The issue of homosexuality was different than the earlier ones of race and women's ordination in that it operated on two levels. Homosexuality involved two problems: morality and Church government. The earlier issues did not involve morality, at least not directly. They were matters of institutional structure. Homosexuality was more than that. Conservatives saw homosexual behavior as inherently sinful and therefore immoral and unchristian (they love to quote the handful of verses they say condemn homosexuality). They said it was against God's plan of nature. Therefore, if it were sinful, it should never be condoned by the Church in any way such as allowing practicing gays to hold Holy Orders. By the 1980s, the Diocese of South Carolina, under Bishop Allison, moved squarely into this camp and would stay there afterwards to the schism.

The issue of the ordination of gays came to a head in the Episcopal Church much the same way women's ordination did, by proponents holding ordinations in defiance of the understood rules. The problem of the 1979 resolution ("not appropriate") however, was that it was never put into canon law. It was only a resolution, not a law of the Church. John Shelby Spong, the bishop of Newark decided to move ahead with reforms favoring homosexuals. By 1988 he established in his diocese the first rites for same-sex blessings in the Church. In 1989, he ordained a gay man, Robert Williams who was living openly with a same-sex partner. The next year Spong's assistant bishop, Walter Cameron Righter, ordained an openly gay man, Barry Stopfel. The leaders of the Diocese of South Carolina went ballistics and went off to the General Convention of 1991 demanding fierce disciplinary action.

The 1991 Phoenix General Convention is still remembered for its tumultuous, raucous, acrimonious atmosphere. It was all because the issue of homosexuality was back front and center and the Church had to deal with it. There was no choice. Much to the South Carolinians' disappointment, however, the House of Bishops refused to censure Spong and Righter. The Convention hammered out a tortuous, strange patchwork resolution that on the one hand reaffirmed traditional marriage and also recognized the reality of homosexuality. This was not the finest hour in Church history. In fact, the next year, the bishops met at Kanuga to ask why they were so dysfunctional (It was reported that Allison told them it was simple---apostasy, and then refused to take Communion with them). Nevertheless, the 1991 Convention marked the shift in the momentum within the Church from the "anti" to the "pro" side. By not censuring Spong and Righter and not voting to "invalidate" the controversial ordinations, the Convention had given tacit recognition to the ordinations of open gays.

The 1994 General Convention, in Indianapolis, was really the turning point for the Church on the issue of homosexuality. From 1976 to 1991 the "antis" had the upper hand. After 1991 the balance began to shift. By 1994, the great confrontation was ready. That year, the House of Bishops presented a study report on human sexuality that conservatives prepared to attack. They drew up a formal statement called the "Affirmation" and had it signed by 106 bishops denouncing the bishop's study report. They made very clear their position: 1-marriage is between one man and one woman only, 2-sexual relations between same-sex persons cannot be condoned by the Church, and 3-the Church cannot compromise on moral principles. Their goal was to kill this bishops' report as they indeed had done in 1988 with an earlier report called "Sexuality: A Divine Gift." But the situation was different now.

By 1994, the proponents of homosexual rights had developed a concerted effort to make their case. It was led by Bishop Spong. At the 1994 convention he refused to allow the conservatives to rule the field. He organized a strong opposition that drew up its own document called the "Koinonia Statement" that listed their goals: 1-recognition that homosexuality was morally neutral, 2-that same-sex couples in committed relationships should be honored and 3-that ordination should be open to all homosexuals. It was eventually endorsed by 90 bishops. 

At that point the Episcopal Church was divided on the issue of homosexuality roughly into thirds, one-third "anti," one-third "pro," and one-third neutral. The battle then was between the antis and the pros for the hearts and minds of the uncommitted middle crowd. The fact that the antis said their position was not negotiable left them in a box. In the end, the bishops decided to send their new study report on sexuality to the deputies without attaching either the "Affirmation" or the "Koinonia Statement" to it.

The 1994 Convention went on to pass a landmark resolution making a change in the Church canons to list "sexual orientation" as something that could not be used against ordination. This was done so quietly and subtly the conservatives barley recognized it. In fact, canon law was changed to remove the barrier against the ordination of gays. Spong and the "pro" side won the day even if it took quite a while for the other side to know what had hit them.

They did come to realize it much to their chagrin. Not willing to surrender, however, they moved on to another plan of action, hauling in the "pro" Bishop Righter for a church trial on the charge of heresy. Ten conservatives drew up a formal presentment against Righter that was signed by many other bishops and warmly endorsed by those of South Carolina. In 1996, after two hearings and before a formal trial, the court dismissed the charges saying there was "no clear doctrine" on the issue (the 1979 resolution was not a doctrine). The conservative bishops had gambled all on the court and had lost. That really cleared the way for the ordination of homosexuals and broke the back of the "anti" movement in the Episcopal Church. The affirmation of Bishop Gene Robinson in 2003, the first openly gay bishop in the Episcopal Church, was really an aftermath of the Righter trial of 1996. We all know the rest. After Robinson, the "antis" drew up the Chapman Memo that made a blueprint for schism. Four dioceses voted to leave the Episcopal Church. In 2012 the Church adopted a liturgy for the blessing of same sex unions. In 2015, the Church changed its canons to allow same-sex marriage in the Church. Mark Lawrence and the ruling clique of the Diocese of South Carolina used the 2012 Convention decisions as the excuse to lead the majority of the diocese out of the Episcopal Church.

So, today begins same-sex marriage in the Episcopal Church. It is the end of a long campaign in the modern culture war. Scientific demographic studies show that the Episcopal Church was ahead of the curve on the great democratic issues of the post-Second World War age. Of that, I for one am proud without end.

Before today is over, I think all Episcopalians who treasure freedom, justice, and equality for all people should take a moment and thank the man who really made homosexual rights possible in the Episcopal Church, John Spong. To my knowledge he is still alive and well at age 84.

So I say, wherever you are, thank you Bishop Spong, thank you. You were right. Your enemies were wrong. We are in a better place today because of your wisdom, courage, and resolve. In a sense, today is your day.



SOUTH CAROLINIANS NOW AGREE--HOMOSEXUALITY SHOULD BE ACCEPTED

A new Pew Research Poll reveals that for the first time, the majority of people in South Carolina agree that homosexuality should be accepted. The study was recently published as "Religious Landscape Study," (survey conducted in 2014) by the Pew Research Center, Religion and Public Life (www.pewforum.org/religious-landscape-study/state/south-carolina/ ). On the question of whether homosexuality should be accepted or discouraged, 51% of South Carolinians now say accepted while 42 % said discouraged. This is a drastic reversal over the last seven years. In 2007 a survey showed 37 % accepted while 52% discouraged. In seven years "accepted" jumped 14% while "discouraged" fell 10%. The trend is clear. 

Same-sex marriage. In the same survey in 2014, however, 54% of South Carolinians still opposed same-sex marriage while 40% favored. However, a closer look shows this too is changing rapidly. In an extensive scientific study in 2013, Nate Silver, the dean of political and demographic statisticians, showed that at that time 68% of South Carolinians opposed same-sex marriage ("How Opinion on Same-Sex Marriage is Changing, and What It Means,"  http://fivethirtyeight.blogs.nytimes.com ). Putting the Silver and Pew figures together, we see a 14% drop in opposition to same-sex marriage in South Carolina within a two year period. Silver went on to predict that South Carolina would reach the 50/50 mark in the year 2020. Now, it looks as if it will be sooner than that, much sooner. Very soon the majority of South Carolinians will favor same-sex marriage. The trend is unmistakable.

To be sure, South Carolina lags behind most of the United States and remains one of the most conservative states in the nation on social issues. This, of course, would come as no surprise to anyone how knows the first thing about South Carolina history. The Diocese of South Carolina was the very last diocese in the entire Episcopal Church to racially integrate and to allow women full equality in position of leadership and authority.

In the U.S. as a whole, the new Pew study found that 62% of people accept homosexuality while 31% discouraged ( www.pewforum.org/religious-landscape-study ). As for same-sex marriage, 53% of Americans support it while 39% oppose. The survey was taken in 2014, well before the famous Supreme Court decision of June 2015 legalizing same-sex marriage in the U.S. No doubt the "support" number would be considerably larger today.

This is a historic moment in the social history of South Carolina. Most South Carolinians now, for the first time in history, see no problem with homosexuality. It's live-and-let-live.  

So, what does all of this have to do with the schism in South Carolina? Plenty. As we have seen, the direct cause of the schism in the Episcopal diocese in 2012 was the issue of homosexuality. When the Episcopal Church adopted a policy of allowing formal blessing of same-sex unions in the church and equality for transgendered clergy, the diocesan leadership drew up a conspiracy for a schism. They put it in a secret written plan on Oct. 2, 2012 awaiting the first opportune moment to put it into effect. That happened on Oct. 15. Everyone knows this schism in South Carolina would not have happened except for the controversy over homosexuality.

The recent scientific studies show that the people of South Carolina are rapidly moving away from the diocesan leaderships' prejudice against rights for homosexual persons. This is especially true among young people who are near unanimous in agreement on acceptance of homosexuality. This means the future of a church based on opposition to homosexuals is dismal. In time, fewer and fewer people in South Carolina will be attracted to that increasingly rejected viewpoint. The independent diocese is likely to decline into a collection of mostly cynical old people, diminish, and either shrivel into nothingness or die out. If the independent diocese persists on its present path, its prognosis is decline, and probable death. No amount of propping up from African bishops is going to prevent that collapse.   

THE TRIUMPH

OF INDISCRIMINATE INCLUSIVITY

One may say it is a new age in the history of the Episcopal Church. The Most Rev. Michael Curry has been installed as the XXVII Presiding Bishop of the Episcopal Church. He is the first African American to hold that post. However, it is not really a new age, but the fruition of a long evolving age, a journey of some sixty years in the life of the Church. Horizontal religion is now gloriously triumphant.

A few years ago, when he was an Episcopal Church bishop, Mark Lawrence was found of criticizing the Church for what he called its "indiscriminate inclusivity." He quit the Church after it adopted a rite for the blessing of same-sex unions and equality for transgendered clergy. He did not think the Church should include those things. 

Presiding Bishop Curry's installation today was the grand festival of the culmination of the long opening of the Church to indiscriminate inclusivity. Our Lord turned away no one. He was the original practitioner of indiscriminate inclusivity. This Church now practices equality too: male, female, black, white, brown, straight, gay, young, old, all ethnicities, all languages, in short, all of God's children. This is the Episcopal Church after decades of developing an all-inclusive community. And, this is where it should be.

The Episcopal Church was founded 230 years ago to be an American church for the American people. It has succeeded beyond even the wildest imaginations of its founders.

People of South Carolina, your ancestors and forefathers were in on the creation and growth of this great Church. It is your church too. You are included just as everyone else is. Those of you who have felt the need to leave home because it had become too inclusive, know that it embraces you too. You cannot erase history. The Episcopal Church is the great historic home of the Diocese of South Carolina. It is time for the good communicants of the independent diocese to reconsider the last three years. Instead of division, dissention, and hurt, you can look homeward to peace, reconciliation, healing, and love. The Episcopal Church wants you home. 




The video of "Holy Eucharist and Installation of the Most Rev. Michael Curry as XXVII Presiding Bishop," November 1, 2015, is available on YouTube: https://www.youtube.com/watch?v=X5YZtmFkNyU . It runs nearly three hours.      

NEWS UPDATE --- OCT. 26

We are now in the "waiting" period in the history of the schism in South Carolina. We have had the state supreme court hearing (Sept. 23), and are now awaiting the court's written decision. Since the Chief Justice is retiring on Dec. 31, that may well come before the end of the year, if not, in early 2016. Everyone is anxiously awaiting the ruling. This blog has had over 6,000 "hits" since the hearing. Although I have nothing to add at this point about the supreme court, there are several other items of noteworthy events of interest concerning the schism.

1. Mark Lawrence presided over his first ordination of a woman to the priesthood. On October 10, Lawrence ordained Martha Horn (one of only two women he has ordained to the diaconate). Read the short article about this in the DSC e-newsletter of October 16 and see the photo section. It should be recalled that Lawrence came from the Diocese of San Joaquin that had never ordained a woman; and he himself is on record as speaking disparagingly of women's ordination. We do not know at this point whether Lawrence's change of heart is only a personal favor to a clergy couple loyal to him, or really signals a change of policy to favor women's ordination in DSC. It may well be the former since to my knowledge there is no woman "in the pipeline" to ordination in DSC. Both Horn and her husband are struggling against serious cases of cancer. Although the DSC press release did not mention it, this first ordination of a woman by Lawrence is a landmark in DSC. As we know, the direct cause of the schism was rejection of the Episcopal Church's equality for homosexual and transgendered persons. The schism came from a stand rejecting equality. If DSC can now accept equality for one oppressed group, it can do the same for others. Thus, Horn's ordination is a great step forward for a "diocese" that has been much too reluctant to step at all toward accepting all of God's children as equal.

2. The primates and representatives of 12 Global South provinces met in Cairo, October 14-16. They wrote: "We were happy to receive a report from Bishop Mark Lawrence of the Diocese of South Carolina, which receives Primatial oversight from the Global South." No other words about this were given. It should be recalled that DSC set up a strange "oversight" arrangement with the steering committee of the Global South primates. No explanation of the arrangement was ever given; but it did hold that DSC could withdraw at will rendering any "oversight" a sham. DSC remains a "diocese" apart from any legitimate or illegitimate province of the Anglican Communion.

The conference also welcomed the Anglican Church in North America as a "partner province" and recognized its archbishop, Foley Beach, as a fellow primate. It should be recalled that the Anglican Communion officially recognizes only the Episcopal Church as the legitimate province of the Communion in the United States, and does not recognize the legitimacy of the ACNA nor its archbishop as any kind of "primate."

The conference also issued a "Communique" stating the Global South primates would attend the January conference called by the Archbishop of Canterbury (11-16 Jan. 2016, Canterbury) but made it clear they would go only with an "agenda." As a hint of its agenda, the next item blasted the Episcopal Church for its acceptance of same-sex marriage which the primates unilaterally declared violated the teachings both of the Anglican Communion and the "one Holy, Universal, and Apostolic Church."  That should put to rest any lingering doubt anyone might have had that this schism in the Anglican Communion and in South Carolina is not about homosexuality.

The recent bishops' synod at the Vatican suggests that what is happening to tear apart the Anglican Communion is not unique to it. News reports show that the same sort of split may be occurring in the Roman church where once again the equatorial Africans and their western conservative allies have set up a counter force to oppose western democratic liberalism. Pope Francis's moves for a more merciful and accepting church have been fiercely opposed, and perhaps even blocked, by a coalition led by the African bishops who are resolved to promote their own Afro-centric socio-cultural agenda. See the articles in Yahoo News such as:  http://news.yahoo.com/african-bishops-criticize-vaticans-priorities-eurocentric-174924024.html . 

Recommended reading:  Miranda Hassett, Anglican Communion in Crisis: How Episcopal Dissidents and their African Allies are Reshaping Anglicanism (Princeton University Press, 2007. 295 p.). Although written before GAFCON and dated, this is the definitive work on the formation of the alliance of American counter-revolutionaries and the equatorial African bishops. Prophetic in that this alliance has indeed created a de facto schism in the old Anglican Communion.

3. Foley Beach, archbishop of ACNA, attended the clergy conference of DSC, October 19-21. The only information we have about this visit came in a news release from DSC: www.diosc.com/sys/news-events/latest-news/700-archbishop-beach-speaks-at-diocese . The only descriptive remark the news release made was that between Foley and the clergy, "The discussion was frank." One can make of that whatever one wishes; however, "frank" is often a euphemism for difference of opinion. Obviously since there was no other statement from DSC or Beach, the two sides agreed to disagree. Why DSC refuses, after three years, to join ACNA remains a secret tightly held among the ruling clique. The situation of DSC now is that it is virtually an independent Christian denomination vaguely "recognized" as legitimate and somehow "overseen" however strangely, by the Global South Anglican primates. It is not in the Anglican Communion. It is not attached to any province, real or pretend, of the Communion. In effect, DSC is its own little church led by an authoritarian bishop who shows no sign of changing that. DSC is in nowhere going nowhere.

4. The Episcopal Church in South Carolina filed a "Notice of Appeal" with the U. S. Court of Appeals, 4th Circuit (Richmond) on October 19. One should recall that in 2013, Bishop Charles vonRosenberg filed a suit in the U.S. District Court (federal court) in Charleston against Mark Lawrence claiming Lawrence violated the Lanham Act that protects federally registered trademarks. He asked the court to recognize himself, and not Lawrence, as the only legal and legitimate bishop of the Episcopal diocese of South Carolina. The federal judge, C. Weston Houck, set aside the suit pending the state circuit court proceeding. ECSC appealed this to the Court of Appeals in Richmond. This year, that Court found Houck had used the wrong standard to abstain and remanded the case to him to be reconsidered following another, and more demanding, principle. In spite of this order, once again Houck abstained and set aside the suit pending the state supreme court decision. By this, Houck ignored the Appeals Court clear direction to adjudicate the case. The new appeal, of Oct. 19, asks the Court of Appeals in Richmond to act again to overturn Houck's decision to refuse adjudication in favor of the state court proceeding. Instead of repeating, I will direct you to Steve Skardon's informative summary at www.scepiscopalians.com .

5. The new presiding bishop of the Episcopal Church, the Rt. Rev. Michael Curry, will be installed on Sunday, November 1, in the Washington national cathedral. The two-hour service will be live streamed beginning at 12:00 p.m. EDT. Find it at the cathedral's website:  www.cathedral.org. The service leaflet of 31 pages is available now:  www.cathedral.org/pdfs/20151101PBCurryInstallation.pdf . In the service, the present presiding bishop, the Most Rev. Katharine Jefferts Schori will hand over the office of presiding bishop and primate of the Episcopal Church to Curry. This will be a historic event as Curry is to be the first African American to head the Church. It is amazing and heartwarming to see how the Church has developed from its first tentative steps toward racial justice in the 1940's to his point. Indeed, a full-fledged commitment to civil rights was the first part of the "horizontal" revolution of social justice the Church started after the Second World War. Equality for women and homosexuals ensued. It was the last that the leaders of the old Diocese of South Carolina decided they could not tolerate. They led the majority of the diocese out of the Episcopal Church in 2012 after the General Convention approved a service for the blessing of same-sex unions and equality for transgendered clergy.

OCTOBER 15

Tomorrow, October 15, is an anniversary to remember. How one remembers it depends on which side of the fence one is on. It was three years ago, October 15, 2012, that the authorities of the Episcopal Diocese of South Carolina finally enacted, at least among themselves, their plan to remove the diocese from the Episcopal Church.

At 12:00 noon, on Monday, October 15, 2012, the Most Rev. Katharine Jefferts Schori, the Presiding Bishop of the Episcopal Church, initiated a conference telephone call from her office in New York City. It included the Rt. Rev. Mark Lawrence, bishop of the Diocese of South Carolina, Mr. Wade Logan, the chancellor of the Diocese, and the Disciplinary Board for Bishops. Schori announced to all that the Board had certified that Lawrence had abandoned the communion of the Episcopal Church, and therefore under the canons of the Church, the Presiding Bishop was required to place a restriction on the Lawrence. She forbade him for exercising any ministry until this issue could be resolved. He would have sixty days in which to make a written appeal to the Presiding Bishop who then would have the discretion to remove the restriction and restore the bishop to his constitutional ministries. As an alternative, Lawrence could wait until the next meeting of the House of Bishops, scheduled for March of 2013, make his case to the House and have a trial and verdict of the bishops.

Jefferts Schori followed the rules in the canons of the Church, then she added a personal request. She asked Lawrence to keep this private until they met on October 22 in the conference already planned of Jefferts Schori, Lawrence and Bishop Andrew Waldo, of Upper South Carolina, in New York. There they could meet again and try to resolve the issues privately and quietly. Lawrence listened and the conference call ended. Lawrence then proceeded to ignore all that Jefferts Schori had directed to him.

Immediately after the call, Lawrence arranged a conference call with the diocesan standing committee at 1:30 p.m. Apparently, Lawrence, the committee, and perhaps the lawyers Wade, and Alan Runyan, all agreed that the "restriction" automatically enacted the previously secret plan of to disassociate the diocese from the Episcopal Church. Earlier, on October 2, 2012, the bishop, lawyers, and committee had agreed in a private meeting on a secret plan to remove the diocese from the Church. The committee passed a resolution that if the Episcopal Church took "any action of any kind" against Lawrence, the diocese would automatically leave the Episcopal Church. For the time being, this plan remained the secret of the clique of twenty or so persons in on it. Lawrence met Jefferts Schori and Waldo the next day in New York and did not mention the committee's vote.

Thus, it was on the afternoon of October 15, 2012, that the officials of the Diocese of South Carolina unilaterally decided on the withdrawal of the diocese from the Church. This was kept secret for two days to allow Lawrence and the other officials time to prepare for the announcement to the rest of the world.

On Wednesday, October 17, Lawrence called Jefferts Schori and told her the diocese had disassociated from the Episcopal Church because of the heretofore secret October 2 resolution of the standing committee. The break went into effect at noon of October 15, the moment of the phone call to Lawrence with the announcement of the "restriction." Jefferts Schori made it plain she was still planning on the previously scheduled meeting of October 22. In fact, there was no meeting between Lawrence and Jefferts Schori after October 17. Lawrence claimed that he had disaffiliated from the Church; therefore, there was no point in a further meeting with Episcopal Church officials. Nevertheless, Jefferts Schori called Lawrence several more times in a vain effort to keep talks going.

As soon as Lawrence ended his phone call to Jefferts Schori of October 17, the diocesan office issued a prepared barrage of press releases announcing the removal of the diocese from the Episcopal Church. It also announced a special diocesan convention on November 17 in order to revise the diocesan canons to reflect the disassociation the standing committee had already made. It is important to note that the purported removal of the diocese from the Church was made in secret by a group of no more than twenty people who appointed themselves authorized to do this. The clergy and communicants of the diocese were informed of this only by the press releases of October 17. This was a revolution from the top down.

The special diocesan convention met on November 17 at St. Philip's in Charleston. As expected, the assembly passed all the resolutions presented to them by the ruling clique with large majorities. Lawrence announced to the assembly they had disaffiliated from the Episcopal Church but they would continue as the Diocese of South Carolina with himself as the bishop. The convention affirmed this.

On December 5, 2012, Jefferts Schori issued to Lawrence a formal "Release and Removal." She said she and her council of heads of the provinces of the Episcopal Church recognized that Lawrence had left the Church and so abandoned the Holy Orders the Church had bestowed on him. The Release and Removal released Lawrence from this vows to the Church and removed him as a bishop. Lawrence, and the majority of the diocese however made it plain they still considered Lawrence the legal and legitimate bishop of the diocese. Some primates of the Anglican Communion, namely in Global South, agreed with Lawrence and declared their recognition of his claims to office. Now the self-declared bishop, validated by the majority of communicants, Lawrence announced the diocese to be an extra-provincial diocese of the Anglican Communion. Global South agreed but the official structure of the Anglican Communion ignored it. After three years, the "diocese" is still on its own, unaffiliated with a province of the Anglican Communion. It remains the only one among the five breakaway cases in the U.S. not to join the Anglican Church in North America. 

Thus, dear reader, October 15 is a date to remember. Mark it as you wish. I think everyone should pause at noon for a minute of silence. I for one see October 15 as a day of infamy, another needless self-inflicted disaster for South Carolina. The direct cause of the schism, opposition to equality for homosexuals, is a cause past its time. That front of the great modern culture war is closed. America has moved on leaving the schismatics to their peculiar "discriminate inclusivity." Nevertheless, the destructive effects of this premeditated conspiracy to create division will last for a long time in a state that has already seen more than its share of tragedies. I expect to pass the day in quiet reflection and prayer that it all may end as soon as possible. Healing, restoration, and reconciliation will come, and not a moment too soon. And, I have a feeling it is much closer than I had thought after I witnessed the state supreme court hearing of Sept. 23.    

  

WHAT WILL WE KNOW;
AND, WHEN WILL WE KNOW IT?

What will the South Carolina Supreme Court decide in the church dispute? When will they let us know? These are the questions on everyone's mind nowadays. And apparently it is everyone as this blog has had over 4,000 visits since the hearing of September 23.

We have had the hearing. So, what happens next? There are five justices with equal votes on the Court. They will meet in private for deliberations on this case and will vote on a decision. The majority rules. Thus, 3, 4 or 5 justices must agree on a position. One justice in the majority is assigned to write a decision, but the others may contribute to it. If there is a minority, those justices are allowed to write a dissenting opinion giving their reasons for opposition to the majority. That statement carries no weight of law. The majority opinion will have force of law. When the justices are satisfied their work on the case is done, the Court will issue their written decision to the public.

The "when" question is easier to answer than the "what" part of the above questions. The typical gap between hearing and published decision is six months. However, Chief Justice Toal is retiring on December 31, 2015. Since she was the dominant personality in the hearing, I can only assume she will either write the decision herself, if she is in the majority, or will have a lot of input into it. If so, we may get the decision before Christmas. However, the Court is under no time constraint. It can issue a decision whenever it chooses. My own feeling is that we may well have the decision before the end of this year.

The "what" part is much harder to know, in fact, impossible to know. What will the Court decide? All we can do at this point is speculate about an outcome. What good is that? Certainly no good to the Court which makes its decision in private and is accountable to no one. However, speculation is a harmless game that might help us pass the time as we all anxiously await the decision. It might even be good therapy. Besides, after this is over, we can all look back and have a good chuckle at how far off base our predictions were. We will all need a good laugh by then. So, with that in mind, let's speculate.

Now, I think Chief Justice Toal is the most important person in this matter although she has only one vote among the five. We all saw in the hearing that she "owns" this case. Certainly, she will be a powerful voice in the private deliberations. What she will say we can only guess, but we can see the outlines of her thinking in her remarks in the hearing. Her remarks are our best guide to the tracks she may take in the decision making process.

In the hearing, Toal focused on three problems, albeit overlapping ones: 1-the ownership of the parish properties, 2-Bishop Lawrence's authority to act, and 3-the rights of a non-profit corporation under state law. 

On the first, the question of the local properties, she said early on that under state law, the settlor (the one who holds the deed, in this case the parish) must create an express trust for the property. A trust cannot be created by any outside force such as the Dennis Canon. Only the settlor, that is the title holder, can create a trust. The implication of this is that neither the diocese nor the national church could have any legal claim on the local properties.

On the second, Toal wondered aloud if Bishop Lawrence had the authority to do what he did, specifically issue the quit claim deeds. Lawrence issued the quit claim deeds in November of 2011. He served as bishop of the Episcopal Church diocese until December 5, 2012. I must admit, I could not quite follow her logic in this line. If the settlor actually owned the property and had not established an express trust for a beneficiary (diocese or Church), what difference would it make if Lawrence had authority or not? He would not be giving the parishes anything they did not already have. Perhaps the point she was making was that Lawrence might not have had the freedom to act outside the Constitution and Canons of the Episcopal Church. 

It was on the third point that Toal seemed most interested. If the diocese were duly incorporated as a non-profit corporation under state law, did it not have freedom to act independently of the mother church? Did it not have the right to separate from the mother church as long as it followed state law? It seemed to me that Toal might have been moving to focus this case into a fine point of corporate rights under state law.

Thus, it appeared to me that Toal was trying to define the case as the very narrow issues of state law on titled property and corporate rights. If so, her next job will be to convince the majority of justices of her reasoning. In this scenario, she will face a very strong challenger in Justice Hearn who is obviously resolved to defend the Church's claims.

The problem for Toal that I saw was not so much Hearn, but Judge Goodstein and Alan Runyan, the lawyer for Lawrence. Goodstein's Order and Runyan's argument on the  2009 All Saints decision went well beyond the narrow focus of property and corporate rights to spill over into religious issues, for instance, Goodstein's stunning declaration that the Episcopal Church is congregational. Toal's impatience in the hearing, even apparent irritation, with Runyan was clear to me. The introduction of religious issues has forced the Court to broaden its considerations beyond a narrow focus. They will have to deal with questions that came up in the hearing such as hierarchy, the bishop's authority, and obligations of the diocese to the national church. The problem with this track is that the Court cannot go far into the structure of a church. Ruling on the internal working of a church would be a violation of the First Amendment. The justices know they must tread lightly on religious matters because there is only a vague line between neutral principles and deference. If they go too far, they would have to declare for deference. That would end the case on the Episcopal Church side. It seems to me, that may well be what Toal was trying to avoid.

All of that speculation being made, I am ready to move on to predictions. For whatever they are worth, here are what I see as possible decisions of the Court:  (Of course, I reserve the right to change my mind at any minute. Consistency is not necessarily a virtue.)

1. The Court will uphold and validate Goodstein's Order of Feb. 3, 2015.


Bottom line: absolutely not. Out of the question. I have never seen such complete rejection among a panel of judges for a lower court trial and decision. 




2. The Court will remand the case to Judge Goodstein with directions for new proceedings.

Only slightly more likely than #1. Does anyone really think this is possible? One has only to watch the video or read the transcript of the hearing to know Toal and Hearn demolished Goodstein's decision both for its courtroom method and for its findings. I think there is zero chance of remand. I fully expect the Court to act de novo, that is, write a new decision to replace Goodstein's.

3. The Court will make a compromise decision to give something for each side. 

This is possible, but I have a hard time coming up with what a sensible compromise would be. I suppose the logical settlement would be along the lines of attorney Thomas Tisdale's offer in June of 2015 in which he suggested trading the local parish properties for the legal rights to the diocese. So, I'm wondering if the Court might agree with Toal that the local parishes hold titles to their properties, and since none had established an express trust in the property for the diocese or the national church, their ownership of the properties could not now be challenged. Recognize that the local parishes have the properties. Then, give the Episcopal Church the rights to the diocese under the claim that its incorporation was conditional on its operating under the Constitution and Canons of the Episcopal Church. It could not unilaterally alter its corporate documents because of this overriding condition. Thus its purported disassociation from the Episcopal Church was illegal, null and void.

The problem I see with this track is, if the Court recognizes the Episcopal Church would not it also have to recognize the effectiveness of the Church's Dennis Canon? The Canon declared a trust over the local properties. Perhaps the Court could say South Carolina law did not allow such; so that part of the Church's rights would have to be overruled. I suppose such a compromise is possible, but it seems strained to me and I doubt the U.S. Supreme Court would follow the logic of recognizing some rights of the Church and not others.

Bottom line, I doubt there will be a "compromise" decision.

4. The Court will rule that the independent diocese (DSC) owns the legal rights of the old diocese and the parishes own their properties. Total victory for DSC.

I could see this happening if Toal, if indeed she wants the narrow approach, does succeed in getting the justices to focus only on the fine issues of state property law and corporate law. Of course, I'm sure this would lead to a titanic fight in deliberations between Toal and Hearn. I think those two would do their best to sway the other three justices to their sides. My guess is that Justice Beatty might follow Toal since he was a signatory of the 2009 All Saints decision. That would leave Justices Pleicones and Kittredge in the middle. Toal would have to persuade one of them. Hearn would have to bring over both of them to get a majority. It seemed to me that in the hearing, both Pleicones and Kittredge leaned to the Church side.

Bottom line on #3, I think a decision for DSC is unlikely.

5. The Court will rule that the Episcopal Church and its diocese (ECSC) are entitled to the rights, assets, and properties of the pre-schism diocese. Total victory of TEC/ECSC.

To make this happen, the Court will have to go beyond the narrow focus of state law on property and corporations and deal with some religious issues. They will have to see the diocese as at least somewhat dependent on the national church. Since this was the direction I think they were going in the hearing, it is reasonable to assume they will continue that in private conference. In this case, Hearn's position would have the strength. To make this unanimous, Toal and Beatty would have to agree with the broader scope. If these two refuse to agree and the other three do unite behind the Church's position, there would be a 3-2 split decision for the Church side. Toal would go into retirement in defeat on what may turn out to be the defining Court decision of her tenure. She would have this on top of the virtually universal rejection of her All Saints decision.

The problem in this scenario is what the Court would do about the parish properties. It has already ruled a trust can be created only by the title holder. How they resolve that with the Dennis Canon would be interesting to see.

Bottom line, I think there is a slightly better than even (but not overwhelming) chance the Court will arrive at a decision favoring TEC/ECSC, probably unanimously, if not, 3-2.

Alright, dear reader, I have had enjoyed speculating about the Court's upcoming decision. Now tell me what you think.   

  



THOUGHTS ON

THE SOUTH CAROLINA

SUPREME COURT HEARING

INTRODUCTION

Immediately after the hearing on September 28, I made a posting on this blog giving my initial reaction to the event. In the days since, I have reheard the recorded proceeding and made a written transcript for study. After several days of reflection, I can confirm my initial reaction. Now, I have some additional thoughts to offer my readers. Bear in mind I am an ordinary layman, neither a lawyer nor an expert on legal history. I have no connection to either party in this dispute. These are my own thoughts as a student of the history of the schism, for whatever they are worth, which may be nothing. Yet, I can only assume readers are interested. I have had over 3,000 hits on my blog since the hearing.

The hearing started at 10:55 a.m., on Wednesday, September 23, 2015, in the Courtroom of the South Carolina Supreme Court building in Columbia. It lasted 56 minutes and 38 seconds. Two lawyers made presentations to the court, Blake Hewitt for the appellants, the Church side (TEC/ECSC), and Alan Runyan for the respondents, the independent diocesan side (DSC). All five justices were present and all spoke. Chief Justice Jean Toal presided. The other justices were Costa Pelicones, Donald Beatty, John Kittredge, and Kaye Hearn. In all, 7 persons spoke in the hearing. The first block of time went to Hewitt, the second to Runyan, and a rebuttal time to Hewitt. The Chief Justice allowed the attorneys all the time they desired to use. Although both lawyers prepared formal "presentations" for the court, neither got far before the justices broke in for numerous questions. The time was about evenly divided between the justices' questions and comments and the lawyers' responses.

The arguments the two lawyers presented were exactly as I had expected. Right off, Hewitt raised the issue of the loyalty of the diocese to the national Church stressing the bond between diocese and Church under the Constitution and Canons of TEC. The diocese, and authorities in it, he said, had power only under the governance of the Episcopal Church. He also said this was a religious and not just a property dispute. He talked much about the importance of the Dennis Canon and the problem of the quit claim deeds. On the other side, Runyan stressed the sovereignty of the diocese as an independent entity unto itself, not dependent on the national Church, and insisted two separate parties were at dispute here. As a corporate body under state law, the diocese could act as it pleased towards the Episcopal Church. He stressed also this was only a property dispute that must be settled only under local property laws. He said the issue of whether the Episcopal Church is hierarchical was irrelevant in this instance just as it was in the All Saints case of 2009.

WHAT DO WE KNOW FOR SURE NOW?

As a result of the hearing, several points stand out as certainties that we can take away from the event:

1. Judge Diane Goodstein's decision in the circuit court trial has been discarded. DSC had asked the court to uphold the decision; TEC/ECSC had asked the court to overturn it. Score: win for TEC/ECSC.

The demolition came from Toal with a lot of help from Hearn. Only a few minutes into Hewitt's presentation, Toal jumped in to denounce Goodstein's opinion: "It may have been very unbalanced to have made the rulings that were made below that allowed one side's experts...to testify very fulsomely and forbade your side's two experts from getting at all in the issue...hierarchical versus congregational." This was the first of the 40 interjections the Chief Justice made (Hearn had the next highest at 34). This was only Toal's first arrow into Goodstein, but it alone conveyed the unmistakable doom of death. To Runyan, she said, "This case was tried in a rather one-sided way on that particular issue [hierarchy]. You all were allowed to put in an expert to discuss in detail his opinions about whether hierarchical matters...Now, the other side had Dr. Walter Edgar and Professor McWilliams for two that were prepared to delve into specifically matters of hierarchy and so forth and they were completely stopped from arguing that, from presenting evidence about that and then the judge said we are not going to make a finding about hierarchical and then the order comes out and finds that this church is a congregational church. How did all that happen with the way this case was tried? Toal's body language conveyed agitation, but she was not finished. After a rather stunned Runyan got out a response about the Church having no right to control the diocese, Toal exploded: "They [TEC/ECSC] were not permitted to put in any evidence on that point. That's the reason I'm asking the question. And then, and then the judge said I'm not getting into that, she termed it, we are not a hierarchical state as a kind of odd thing because we discussed both principles in All Saints but she said, this, none of this information is going to be considered by me because we are neutral principles. How in the world if that is the framework that was used was a finding made specifically that this is a congregational, that the Episcopal Church is a congregational church?" Runyan, reeling, mumbled, "Your Honor, I know it surely does read that way..." Toal shot back: "It's exactly what it says!" But she was still not through with Goodstein. A few seconds later, she launched into Runyan again: "I mean there's a different side to that and a different set of arguments...in terms of your now getting into this hierarchical/congregational dispute and trying to use the perceived status of the Episcopal Church as a congregational church when your own expert explicated in detail the apostolic succession of your bishops beginning with the apostles and yet this judge finds that it's a congregational church, I'm struggling with that as a means of justifying this Order." There was no justifying the Order. At that point Goodstein's Order of Feb. 3 expired. Everyone knew it. The dominant voice had spoken. Not one other justice spoke up to defend Goodstein's decision.

2. The court dismissed the relevance of its own 2009 All Saints decision to the present case.

It was not just Goodstein's decision that riled up the Chief Justice. Runyan's use of the 2009 All Saints decision did too, perhaps even more so. Since she was the author of that very decision, Toal had a unique protective attachment, perspective, and understanding of the case (Judges are famously protective of their own decisions). Runyan made All Saints a major part of his presentation calling on the court to apply the same principles to the present case.

A bristling Toal would have none of it. The author of the decision broke in to deliver the longest speech of the entire hearing. She dismissed Runyan's claim of relevance and gave a long discourse on the differences between the two cases. (This was my biggest surprise of the day) Patience wearing thin, she lectured the lawyer: "Remember, recall, Mr. Runyan, that in All Saints there wasn't any dispute about the bishop's control of at least some personal interest in All Saints's property...No question about the bishop's authority. Serbian church, no question about the bishop's authority. Here, BIG question about the bishop's authority...but also big questions about whether the diocese, whether the bishop, has any ownership interest at all to deal with because of the Dennis Canon, so big difference between the case and All Saints where they wasn't any question about the bishop's ability to quit claim, would you agree?" End of matter. The very author of the All Saints decision snatched the rug from under Runyan's feet. In my view, Toal's decisive demolition of the Goodstein Order and dismissal of the relevance of the All Saints decision were her two primary contributions to the hearing. Both were stunning victories for the TEC/ECSC side and humiliating setbacks for the opposition.

3. Justice Hearn was completely committed to the TEC/ECSC side.

She was their intrepid advocate, doing, in my opinion, a better job of it that the lawyer. Hearn was the second most vocal justice, interjecting 37 times. This steel magnolia gave no quarter and pulled no punches, of course always with the consciously genteel and polite good manners so common in the Low Country. Hearn was the second justice to speak, denouncing Goodstein's decision and declaring the Episcopal Church hierarchical. She asserted that neutral principles and hierarchy are not mutually exclusive, that the Dennis Canon created a trust, and that DSC had its own Dennis Canon before the national church. She also pointed out, perhaps daringly to the face of the author, that the All Saints decision was an "outlier" because not one other state in the union had accepted it. Although she gave Hewitt plenty of help, she saved her energy for Runyan. The tension in the string of exchanges between Hearn and Runyan was palpable. And this came after Runyan had just suffered through Toal's withering barrage on All Saints. Runyan and Hearn started interrupting each other through nine exchanges until Hearn finally commanded: "Stop there just a minute" to assert the Dennis Canon would trump any state law. Of course, Hearn could not resist adding to Toal's demolition of Goodstein. At one point she confronted Runyan: "This was a non-jury trial and yet I counted over twenty-five objections to Professor McWilliams's testimony in a non-jury trial. You all tried to hard to keep any of that evidence out, and then the Order is issued and low and behold there is a finding that this church is a, controlled by the bottom, that the parishes are really in charge rather than the national church."

4. Chief Justice Toal was the dominant person in the room. There could be no doubt. This was her court. This was her case. It should be remembered that she took this case on appeal to bypass the appeals court. She dominated the conversation in the hearing literally and figuratively. I can only assume all this assertiveness means she will write the court's decision, if she is in the majority, that is.

5. All five justices were outwardly supportive of each other. I detected not a hint of tension among them during the hearing. This could point toward a unanimous decision.

6. Runyan encountered a good deal of overt hostility, especially from Toal and Hearn.

WHAT QUESTIONS REMAIN UNANSWERED?

 

1. The fundamental question in the whole case is, What approach will the Court use in resolving this case? If we can assume the Court has discarded Goodstein's Order and will write a new decision, what criteria will the Court use to make their ruling? We can only guess at the answer by looking at various words of the justices in the hearing.


As a word of warning, we should not jump to the conclusion that discarding Goodstein's Order and All Saints also discards their conclusions. It could be that the court will reach the same conclusion for DSC by other means. I think there was a good possibility in the hearing that Toal was trying to do that by often redirecting the discussion back to the property rights of a state chartered non-profit corporation. 

Although the Chief Justice insisted that the 2009 All Saints decision was not relevant to the present case, she and the other present signatory, Justice Beatty, may possibly want to continue their earlier attitude of favoring the local entity. There were parts in the hearing that might have indicated that. At one point, Toal said to Hewitt in reference to the hierarchical issue: "In the final analysis, specifically with reference to the property determination, the title determination, what difference does it make?" Property rights became Toal's common theme. Then, after chastising Runyan on Goodstein's Order and on All Saints, she propped up the reeling lawyer by feeding him his position: "All these organizations started to file articles of incorporation with the secretary of state including this diocese and there is nothing in those articles that are filed that forbids the corporation that we are talking about, which is your client, from disassociating or deaccessioning from the national church their corporation, they legally changed their purpose. They withdrew their accession to the national church and as a corporation they had the authority to do that, that's your argument, isn't it?" She then added: "If we see it as a matter of corporation law, and don't get tangled up in all the doctrinal issues, as a matter of corporate law they legitimately filed papers accomplishing that, that's your argument?" At the end, during Hewitt's rebuttal, Toal threw him some confrontational hardballs such as: "There is nothing in the corporation law of this state that forbids a corporation, if it does it correctly and according to the law, from changing its purpose, is there?" She continued, "You want us to declare that the corporate law of South Carolina is that once you put a purpose clause in your charitable corporation you are forever bound to that purpose clause and, it can never be changed even if your constitution and operational documents are properly amended to do so?" Then, Toal challenged Hewitt: "What corporate, what constitutional documents were violated by amending the purpose to withdraw their accession from the national church?" The lawyer answered, the Constitution and Canons of the Episcopal Church. Toal retorted, "And are you saying that the national church, once you join it, you can never unjoin it, unless the national church lets you unjoin it? Alright, what principle governs that, the Dennis Canon?" Hewitt answered, the General Convention.

If the focus in deliberations is on narrow corporate rights over the local property, the DSC will have the edge. In order for TEC/ECSC to win, the focus must move to the obligation of the diocese to the national church. Toal seemed to want to make the issue a local corporate authority one. If she does, she can expect a strong opposition from Hearn. If that happens, I can envision an irreparable split on the court. I would guess Toal and Beatty would be on one side while Hearn, Pleicones and Kittredge would be on the other. That would give a 3-2 majority decision for the Church side.

2. What effect will the issue of Bishop Lawrence's authority have on deliberations? Another surprise I had was to hear the discussion about whether Bishop Lawrence had the authority to do what he did. Hearn had no hesitation about rejecting Lawrence's authority and recognizing vonRosenberg as the legitimate bishop of the diocese. Toal, however, seemed only perplexed by the question and gave no answers.

3. What effect will the issue of trademark infringement have on deliberations? Toal seemed annoyed by Judge Houck's decision to defer to the state supreme court and wondered aloud whether they could consider the issue. Kittredge offered that they could. If trademarks are added to the mix, that should strengthen the Church's hand since federal trumps state.

4. What effect will past political maneuverings among the justices have on their deliberations in this case?

On Feb. 5, 2014, the South Carolina General Assembly elected Toal to another term as chief justice (in South Carolina, judges are justices are elected by the legislature). She defeated Pleicones by a vote of 95 to 74 after a reportedly controversial campaign. She stood for reelection even though she would have only a year to serve on the 10 year term since state law requires a chief justice to retire at the end of the year in which he or she turns 72. In May of this year, the Assembly elected Pleicones chief justice without opposition. After Toal retires on Dec. 31, 2015, he will become chief justice but will have just one year to serve as he will have to retire on Dec. 31, 2016. Although both publicly profess to being nothing but good friends, one has to wonder what lingering feelings Pleicones might have about Toal's blocking his election in 2014 leaving him with only one year as chief justice. Toal has been chief justice since 2000, more than any chief justice in modern history.

5. What effect will Toal's view of her historic legacy have on the impending decision?

Toal will have been chief justice for 15 years, the first woman and the first Roman Catholic to hold that position. She must be concerned about her legacy. How will future generations view her place in history? As the author of the landmark 2009 decision on the All Saints' property, she would certainly want to protect that. She knows how poorly that decision has been received in the nation. In fact, no other state has accepted it. This must be something of an embarrassment for her.

The present case will perhaps be her final legacy. She will want to get it right. I would guess she would want a unanimous decision clearly giving a standard the whole nation would accept. After all, this will be the first state supreme court in the United States to rule on a dispute between the Episcopal Church and a local diocese. This decision may well be her greatest legacy. (It strikes me as ironic that of all states, South Carolina may be the one to decide the national standard on whether a diocese can secede from the union.) 

I am certain a decision favoring DSC will not be unanimous. It is inconceivable Hearn would go along. On the other hand, a decision for TEC/ECSC would either probably be unanimous or a 3-2 split with Toal in defeat. Would she want defeat to be her final legacy?

6. Is there an ideological split on he court that would affect the outcome of deliberations? On this I would have to defer to someone who is familiar with the historic inner workings of this particular panel of justices. I saw no apparent split in the hearing, but that does not mean it does not exist. One would need to study the decisions handed down by this particular panel of justices to know that.

SOME FINAL THOUGHTS

The reactions of the two sides after the hearing tell us much about how the hearing went. The DSC issued a press release that was factual and straightforward without their usual spin. Typically, if DSC is pleased it declares victory as God's will. This time they did not. The quasi-official voice of DSC, Kendall Harmon's website, has been almost silent on the subject, only posting what others said and with almost no comment. Very vocal, as usual, was Alan Haley, the lawyer and blogger a.k.a. "The Anglican Curmudgeon." This time he turned all guns on Justice Hearn for her "blatant bias" and "unprofessional" behavior. He called for her to be investigated under the ethics codes. Ladson Mills III echoed that on Virtueonline claiming she had too many ties to the Episcopal Church. Thus, the reactions of the DSC side tell us they sense they are in trouble in the state supreme court. If they were confident of victory they would be behaving otherwise, and certainly not vilifying one of the justices who is about to rule on their case.

On the other side, the reactions are a mixture of relief and jubilation. You have only to read Steve Skardon's blog, scepiscopalians to know that.

Will this decision be appealed to the U.S. Supreme Court? Maybe. The loser certainly will have the right to ask SCOTUS to take the case. I expect TEC would do that if they lose. DSC has indicated they may not appeal if they lose.

If DSC winds up losing this case, I think it will be because their lawyers made certain serious errors. The first was to get a circuit court trial relentlessly one-sided with a decision that was so over the top it was dead on arrival at the higher court. A more balanced trial, a more judicious decision that still reached the same conclusion would have had a much better chance of success. There is such a thing as too much of a good thing. The excess of the circuit court turned out to be its own self-destruction. A second mistake the DSC lawyers made was to try to spread the 2009 decision on All Saints parish to the whole diocese. They overplayed their hand and the author of that very decision slapped them down for it. A third mistake I see was not to challenge Justice Hearn to recuse herself. I know of no evidence they did that. Complaining after the fact does no good. Perhaps the decision not to challenge Hearn was made by the same DSC lawyer who thought it was a good idea, in early 2013, to subpoena the spouse of a state supreme court justice. How to account for these misjudgments?Overconfidence? 

Before the hearing, I ended my last posting on this blog with a sorrowful lament on the lowest point in the long and great history of a premier diocese of the Episcopal Church. I still believe that. However, it is always darkest before the dawn, and I have a feeling, and it may just be wishful thinking I know, but I have a feeling that a tiny glimmer of dawn may be breaking way off on the horizon. A long, dark and terrible night might just possibly be coming to an end. One side will win and one side will lose. Even in losing, that side will be a step closer to fulfilling its mission. If TEC loses, it can appeal to SCOTUS for a definitive decision for the nation. Upon defeat, DSC leaders can reorganize and move forward on their self-proclaimed mission of making biblical Anglicans for the twenty-first century until that inevitably runs its course, homophobia fades away and the prodigal sons and daughters return to the loving arms of their ancestral home. So, I think whatever happens in the state supreme court will be for the greater good of both sides. It is just that none of this should ever have happened. It did not have to happen. It is a scandal and a shame, but I know all will be well somewhere down the road.