U.S. COURT OF APPEALS REJECTS THE INDEPENDENT DIOCESE'S MOTION

FOR A REHEARING

On April 29, the U.S. Court of Appeals in the Fourth Circuit, in Richmond, issued an Order denying the independent diocese's appeal for a rehearing of the case vonRosenberg v. Lawrence. Lawyer Alan Runyan had made the appeal to the Court on April 14. The Court had issued its decision to remand the case to the U.S. District Court in Charleston on March 31. This means the federal court in Charleston will have to reconsider Judge Houck's decision of August 2013. Houck had abstained from the case in deference to the earlier action in the state circuit court which he said was parallel. The three judge panel in the Fourth Circuit court said on Mar. 31 that Houck had used the wrong standard for abstention. They said he should have used the Colorado River standard that makes it extremely difficult for a federal court to abstain from a case in deference to a state court.

The three sentence Apr. 29 Order of the U.S. Appeals Court in Richmond reveals that not one of the judges of the Court asked for a vote on Rule 35. This Rule says that one judge of the court may call for a vote on the question of whether the court should hear a case "en banc" (the entire bench, that is, all the judges of a court). If more than half of the judges vote in agreement, they will hear the case "en banc." In this instance, not one of the judges even cared to call for a vote, let alone discuss the merits of the case.

The Apr. 29 Order suggests several points:

---Since not one judge called for a vote, the case was cut-and-dried to them. All of the judges gave recognition to the clear-cut unanimous decision of the three judge panel (Motz, Gregory, Wynn).

---Judge Goodstein's highly controversial decision of Feb. 3 had absolutely no influence on the federal judges in Richmond. The three judges issued their ruling on Mar. 31 and the whole court rejected DSC's appeal on April 29. The federal judges in Richmond had no concern whatsoever for the previous state court litigation.

---The judges of the U.S. Fourth Circuit rejected DSC's appeal in just 15 days. Within one month, the three judge panel unanimously directed the U.S. District Court in Charleston to reconsider the case and the whole court sustained that order.

The independent diocese issued a press release and posted this on their website yesterday. It continues DSC's longstanding blame-it-all-on-the-Episcopal Church (conveniently omitting that DSC started the lawsuits) as well as its recent attitude of desperation while misrepresenting the litigation and the powers of the courts. The statement implies that federal courts must abide by state court decisions. In fact, federal courts have superiority over state courts. Moreover, as the Fourth Circuit judges made plain, federal courts almost always MUST adjudicate cases involving federal law. A federal court can abstain only in very rare instances. It was obvious that the federal judges in Richmond believed the federal court in Charleston should hear this case.

Thus, the litigation in South Carolina continues along two tracks, state court and federal court. Soon, the two sides should present their briefs, or arguments, to the South Carolina state supreme court. The date for the oral hearing there has been set for Sept. 23. Meanwhile, we can await word from the U.S. District Court in Charleston on how it will proceed with the remanded case of the bishops. It has two choices: abstain or proceed to a judgment. In order to abstain, a heavy burden will be placed on the court to explain the very narrow and compelling reasons it sees justifying the abstention. It will have to follow the Colorado River principle that makes it extremely difficult to abstain from a case involving federal law (in this case the Lanham Act). If the court cannot find overwhelming reasons for abstention, it must proceed with adjudicating the case.

Feb. 3 was the high point in DSC's litigation. Judge Goodstein gave them everything they wanted and then some. Since then, however, legal matters have not looked so good for the independent diocesan side. They know very well the judges they will face in the high courts of Columbia and Charleston will be a far cry from what they have enjoyed so far.

GAFCON OFFICIALLY ABANDONS

THE VIA MEDIA

"When the Gospel is at stake there can never be a middle way." Thus declared the primates of GAFCON (Global Anglican Futures Conference) in their London Communique of today, April 17, 2015 (http://gafcon.org/news/gafcon-primates-communique). "As followers of Jesus we know that it is the narrow way that leads to life." This statement makes it official to the whole world that GAFCON has repudiated the historic Anglicanism of the Via Media or Middle Way that has fundamentally characterized the Church of England and her descendants around the world bonded by Anglican sensibilities and liturgical traditions. Indeed, the Church of England was declared independent of Rome in the sixteenth century in order to be the broad middle ground of tolerant and non-dogmatic Christianity for the entire realm. That character has been its peculiar genius for nearly six centuries. Now the leaders of the majority of worldwide Anglicans have overthrown that bedrock Anglican principle. They have declared for the distinctly non-Anglican "narrow way." This is a historic turning point in the history of Anglicanism and of the Anglican Communion.

Today's Communique was issued by six official primates of the Anglican Communion (Congo, Uganda, Nigeria, Rwanda, Kenya, and South America) plus Foley Beach, the archbishop of the Anglican Church in North America. GAFCON recognizes only ACNA as the legitimate branch of Anglicanism in North America. "Advisors" of this group include Michael Nazir-Ali, recently appointed the visiting bishop of the independent diocese in South Carolina. GAFCON is largely an equatorial African association bound by traditional social customs, particularly male dominance and persecution of homosexuals. This is cloaked in the guise of what they claim as the authentically traditional ("orthodox") biblical Christianity. Their hardline defense of old social customs of middle Africa has put them at odds with the mainstream of Anglicanism and especially the First World provinces of England, the U.S., Canada, and Australia.

Ironically, while the GAFCON leaders are breaking up the old Anglican Communion and creating a pared-down and separate majority of socially conservative Anglicans, they insist they are doing just the opposite. "We are not leaving the Anglican Communion. The members of our churches stand at the heart of the Communion, which is why we are committed to its renewal." Renewal. That is code term for "orthodox," or vertical replacement of progressive, or horizontal Anglicanism that is found in the developed countries of the world. And, to drive this point home, the leaders announced a world gathering of GAFCON next in 2018, the year the Lambeth Conference was to meet. Apparently Lambeth will not convene in 2018 because the Archbishop of Canterbury was unable to get together enough Anglican primates to support it. So, GAFCON will meet instead. No one can miss the point that GAFCON is in the process of demolishing the old Anglican Communion.

GAFCON also intends to replace the old Anglican Communion provinces in the United States, Canada, and now apparently in Australia and, most brazenly in the very heart of the Anglican world, England itself. If this does not give the Archbishop of Canterbury cause for concern, nothing will. The Communique pointed out that GAFCON had conducted an organizing conference in Australia in March of 2015. As for England, the Communique boldly declared "FCA UK & Ireland, formed on our initiative." on our initiative. "We are particularly concerned about the Church of England and the drift of many from Biblical faith." ("Biblical faith" is code term for socially conservative orthodoxy in vertical religion.) "We continue to encourage and support the efforts of those working to restore the Church of England's commitment to Biblical truth." And this is just the start: "We have planned for the expansion of our movement..."

GAFCON was created in July of 2008 in Jerusalem on the eve of the Lambeth meeting of that year. It was formed to promote social conservatism in the Anglican world, particularly to oppose equal rights for homosexual persons and women in the Church. Many bishops who attended GAFCON refused to go to Lambeth. Bishop Lawrence attended the original meeting and has warmly supported the movement ever since. Interesting enough, however, he has steadfastly refused to join the American branch of GAFCON, the Anglican Church in North America. He has kept his "diocese" entirely separate of any larger group for reasons unapparent.

Today's Communique should make it entirely clear to everyone that GAFCON is splitting up the old Anglican Communion. It actually has the majority of Anglican communicants in the world. What it is creating is a Third World-centric organization devoted to traditional, conservative social systems and narrow theology. It has linked up with the social reactionary minorities in the First World countries to form a worldwide network. This is redefining Anglicanism and actually remodeling the old religion into something new and different than its historic roots intended. GAFCON's philosophy of Anglicanism is a far cry from Elizabeth I's and an even farther cry from American Episcopalianism.


See also the informative report in The Telegraph of April 17:  http://www.telegraph.co.uk/news/religion/11546390/Bishops-back-Church-of-England-breakaway-congregations.html


And "Conservative Anglicans Poised for 'Leap Forward,' Deny Schism, Christian Today, April 17, 2015, http://www.christiantoday.com/article/conservatives.committed.to.anglican.communion.but.increase.funding.to.own.mission/52307.htm

 

     

 

PANIC ON COMING STREET?

There is a rising air of desperation, possibly even panic, coming from the independent diocesan headquarters on Coming Street in Charleston. The year 2015 is turning out to be very different than were 2013 and 2014. At two and a half years into the schism, matters are not looking so well for the secessionists these days.

As we have seen in posts on this blog, statistics show there has been a drastic drop in both membership and income of the independent diocese, down a third since Lawrence arrived in January of 2008. Around the time of the schism 10,000 communicants abandoned the diocese, about half staying with the Episcopal Church parishes and missions and half dropping out of the schismatic parishes and missions. Some local secessionist churches have been hit seriously. While income has declined, legal costs have soared. DSC reports spending $2m on legal expenses ($800k is unaccounted for in the annual budgets; where did it come from? where did it go?).

The DSC "Legal Defense Fund," which operates in secrecy and without accountability, recently established the "1785 Society" to raise a new $300k for this year's legal expenses. Obviously, the money has been slow in arriving. In Holy Week, DSC spent several thousand dollars to post snail-mail letters apparently to everyone on the old mailing list (even some loyal Episcopalians) in which Mark Lawrence solicited donations for the Fund. Just today, Jim Lewis, Canon to the Ordinary at DSC, posted a letter (more about that in a moment) calling anew for donations to the 1785 Fund.

The landscape of litigation has changed. DSC began the lawsuits in January of 2013 when its lawyers chose one certain court and sued TEC, then ECSC there. For over two years, DSC controlled the venue of the litigation through a predictably friendly court. Even the federal court judge, Houck, agreed to step aside in view of the convincing performance in St. George. The show in St. George came to a climax in February of this year when Judge Goodstein produced a decision that sounded as if it had been written by Alan Runyan. Then, DSC's luck began to change. In March, the U.S. Fourth Circuit Court of Appeals rejected Judge Houck's decision to abstain and remanded the case to the District Court in Charleston to be reheard following the Colorado River principle. This enhances the Church side in court and makes it much harder for DSC to make its case. As we have already seen, the case may go to another judge in the District Court who is much friendlier to the Episcopal Church. The idea, promoted by some, that the federal court in Charleston now has to follow the state court ruling is nonsense. Federal courts are not beholding to state courts. It is the other way around. State courts must accept the superiority of federal actions. The DSC lawyers are well aware of this. 

On April 14, DSC lawyers appealed to the U.S. Fourth Circuit, in Richmond, to reconsider their decision of March 31. This alone showed their lack of confidence in their own position. If they felt certain of the strength of their arguments, they would allow the case to proceed in Charleston without delay. Anyone who heard the audio recording of the Fourth Circuit hearing in January and read the unanimous decision of Mar. 31 knows it is highly unlikely this court will change its position. I suspect DSC lawyers know this and are only employing a delaying tactic (something they repeated accused ECSC lawyers of doing in 2013-14). It may be DSC lawyers want a judgment from the state supreme court first. This, however, is not likely. The District Court in Charleston will probably take up the case again before the state supreme court makes its ruling.

On April 15, the South Carolina Supreme Court agreed to hear the appeal of Judge Goodstein's ruling (Feb. 3). If their two-page statement gives any hint, it is favorability to ECSC. DSC made a motion to the Court "to expedite" the case. ECSC made a counter motion in opposition. The Court rejected the DSC motion and granted the ECSC motion not to expedite. It set a date of Sept. 23, 2015, for oral arguments. If six months later is a typical time for a written decision, that would put a judgment of the state supreme court in early 2016. This will be the first time in which a state supreme court will take up the issue of the legal relationship between the Episcopal Church and a diocese (PA, TX, and IL state supreme courts left it to lower courts). It will be a historic moment for the Episcopal Church and for South Carolina.

It is possible that DSC lawyers wanted to hurry up the state supreme court in order to have the case decided within Chief Justice Jean Hoefer Toal's term. She is reportedly in her last year in that role. Toal is an active Roman Catholic. Her name was on the famous 2009 All Saints decision. That ruling went against TEC and its diocese in finding the Dennis Canon inoperable in that parish's case (the only case in the U.S. finally settled in favor of a breakaway parish). Since Judge Goodstein strongly relied on the All Saints decision in her Order of Feb. 3, one may assume Chief Justice Toal would want to uphold Goodstein's Order to reaffirm her own work of 2009.

Of the justices' names on the All Saints decision, only two are still in the state supreme court, Toal and Justice Donald Beatty. There are three other justices now on the court who had nothing to do with the 2009 All Saints decision. Justice Costa M. Pleicones is from Greenville and is Greek Orthodox. Justice Kittredge is also from Greenville and is a Presbyterian. Finally, there is Justice Kaye Hearn of Conway. She is an active communicant of the Episcopal church in Conway, St. Anne's, the group of refugees from the schismatic St. Paul's. Her husband, lawyer George M. Hearn, Jr. also a leader in St. Anne's, was subpoenaed by DSC lawyers for a deposition in March of 2014. He was ordered for deposition even though he did not hold an office in the Episcopal diocese.


The five justices of the South Carolina Supreme Court will hear the oral arguments from both sides in court on September 23, 2015 and will draw up a written decision some time afterwards, perhaps in early 2016. Thus, DSC lawyers can no longer control the venue of litigation. The U.S. District Court in Charleston and the South Carolina Supreme Court in Columbia will be nothing like the local circuit court in rural Dorchester County.

Back to Jim Lewis's letter of today (www.diosc.com). Lewis, Lawrence's assistant, is often out front with strong public statements against the Episcopal Church side. In my view, his most outrageous assertion was his ludicrous claim that the schism had nothing to do with homosexuality (It's about God, not gays). See the post here on the causes of the schism, part 2. In his new fundraising missive, Lewis once again declares that God favors DSC: "God has remarkably blessed us throughout this litigation process. We have been the beneficiaries of God's providence repeatedly in countless ways..." Apparently Lewis did not get the message from Mark Lawrence in the recent DSC convention that one must not say the legal actions were predestined by God's will. Obviously, if people think God will determine the outcome of the litigation anyway they might not want to give money from their own pockets.

Lewis made three bold, and dubious, assertions in his letter of today, all without a shred of evidence to back them up. This is nothing new. For years before the schism, DSC used the-best-defense-is-a-good-offense strategy and its leaders employed the tactic of making sweeping generalizations against the Episcopal Church without any supporting evidence. As history showed, this strategy and tactic actually worked very well among the majority of the communicants in the old diocese who naturally preferred to trust the words of their own leaders.

Lewis's first declaration was that DSC was in the middle of negotiations for a settlement when TEC tried to remove Bishop Lawrence in 2012. This is not true. A simple glance over the Chronology post here will reveal that. In fact, the evidence shows that after Bishop Lawrence returned from General Convention in July of 2012, he declared a crisis for the diocese. He met secretly with the Standing Committee and drew up a secret plan of action on August 21, 2012. This plan has never been revealed to the public. He continued to meet secretly with his lawyers and the Committee as they drew up a secret plan to remove the diocese from the Episcopal Church. That conspiracy was enacted by secret resolution of the Standing Committee on October 2. It remained a secret among about twenty people until October 15. It was revealed to the presiding bishop and everyone else on Oct. 17. Meanwhile, in public, Lawrence staged a charade of offering peace with the Episcopal Church. He met with Bishop Waldo, of Upper South Carolina, and the presiding bishop, on Oct. 3 but did not reveal to them the secret resolution of the Standing Committee. Neither did he offer a plan of settlement with the national church, only an agreement to keep talking. However, he refused repeated offers to meet in person with the presiding bishop after Oct. 3. The simple facts of history show that for a long time before the schism DSC was planning a disassociation from TEC, not a settlement with it. Lewis's claim that DSC was trying to make a negotiated settlement with TEC is a myth. Nevertheless, it is one DSC leaders continue to make even in face of the stark facts.

Lewis's second contentious assertion was that TEC has never negotiated a settlement in any of its legal actions. TEC goes to court to enforce its duly established Constitution and Canons just as the United States fought the Civil War to defend its non-negotiable Constitution. The Dennis Canon is not negotiable. It is a law of the Church. The idea that TEC lawyers would cast aside a canon of the Church to make a negotiated settlement with secessionists is absurd and the other side knows it.

Lewis's third charge was that DSC told the TEC lawyers that it would entertain written offers of a negotiated settlement in 2013 but that none ever appeared. Really? Tell us more! Who made the offer? When was it made? To whom was it made? Was Judge Goodstein informed of this? She did not seem to know it in court proceedings. What offer of a negotiated settlement did DSC ever make to the other side? If not, why not? It certainly was not in DSC's interest to make a compromise agreement in a court everyone knew would favor DSC, as it inevitably did.

Lewis's letter of today displayed a rather sad air of desperation, just as DSC actions of the last few weeks. The control DSC has had over litigation has ended. It can no longer fire down on its enemy from the heights to the valley below. It must now wage war on an open field. The fight will be different from now on and Lewis, Lawrence, Runyan et al know it very well. If it's not panic in their camp, it is at least grave concern.                 

FEDERAL COURTS

AND STATE COURTS

There is some confusion about the state of the Church litigation now going on in South Carolina. Since this is the only one of the five breakaway diocesan cases that has been litigated simultaneously in federal and state courts, it is understandable that misunderstandings should arise. However, a review of some fundamental historical facts should help us get a clearer picture of the present and future states of the competing legal actions of the two opposing dioceses in South Carolina.

The United States constitution established a federal system of government. States were given rights to regulate themselves within their own borders. The national government, however, was given supremacy (Article 6, Clause 2) over the whole nation, "the supreme law of the land." Federal laws take precedence over state laws. The constitution "mandates that all state judges must follow federal law when a conflict arises between federal law and either a state constitution or state law of any state." (Wikipedia, "The Supremacy Clause"). State courts may only adjudicate cases involving matters within the state. They have no jurisdiction beyond the boundaries of the state. Federal courts handle cases involving federal or national law. They do have jurisdiction beyond a local state. 

Four of the five secessionist diocesan cases were/are adjudicated in state courts only. See: "Litigation Summary, the Cases of the Five Dioceses (March 11, 2015)" on this blog, March 11, 2015. The decisions have run the gamut from one end to the other. Pittsburgh was settled first, entirely for the Episcopal Church. If state courts could set precedence for the whole country, that should have been it. Case closed in favor of the Episcopal Church. A second diocese, San Joaquin, has had a similar experience. There a state court twice very strongly ruled in favor of the Episcopal Church. That decision is on appeal but is likely to remain intact. On the other hand, two diocesan cases have gone against the Church: Fort Worth and Quincy. In Ft. Worth the local court ruled in favor of the Church only to be ordered to reverse itself by the state supreme court. In Quincy, a state court ruled in favor of the separatist diocese. This was upheld by a state appeals court. The Illinois supreme court denied review of the case. Since these four were all in state courts, none of their decisions have jurisdiction outside their respective states.

It has been argued on the Internet that the federal case in SC is dead on arrival because a SC state court has already rendered a judgment in favor of the independent diocese and the Illinois state court has made a final decree in favor of the "Anglican" diocese. Both rejected the claims of the Episcopal Church. In fact, neither of these two examples is necessarily relevant to the federal case in South Carolina. Federal courts are beholding to federal law. The case in South Carolina must be reheard under national law, namely the Lanham Act. It really does not matter what a state court may have said otherwise. The federal court in Charleston will have to adjudicate the case before it under federal, not state, law.

The supremacy of federal over state law was the major underlying point in the March 31 ruling of the U.S. Fourth Circuit Court of Appeals as it overturned Houck's decision. One should recall the original lawsuit in the U.S. court. On March 5, 2013, Bishop vonRosenberg filed a suit in the U.S. District Court, in Charleston, against Mark Lawrence. VonR claimed that under the national Lanham Act (Act of Congress, 1946), Lawrence wrongly infringed on the trademarks of the Episcopal Church and had engaged in false advertising while making himself out as the Episcopal bishop of the Diocese of South Carolina. The suit asked the court to: --find Lawrence in violation of the Lanham Act, --issue an injunction against Lawrence, --award vonR legal costs, --Lawrence make a written application, --Lawrence make accounting of the profits he had earned under the false advertising.

The original lawsuit of Mar 5 was augmented on March 7, 2013, in "Plaintiffs' [ECSC] Motion for a Preliminary Injunction." In this, vonR asked the court to issue an injunction against Lawrence to prevent him from using the official emblems, from claiming to be the bishop of the Diocese of South Carolina, and from making false advertisement. This motion was accompanied by a voluminous memo of supporting evidence.

On August 8, 2013, Judge C. Weston Houck, of the U.S. District Court, in Charleston, heard oral arguments in the case. On August 23, he issued an "Order" dismissing both lawsuits (Mar 5 and 7) in "deference" to the parallel case in state court. In other words, he abstained from ruling on the case. On September 16, ECSC filed a motion with Houck to reconsider. On January 4, 2014, Houck gave an "Order" denying ECSC's Sept. 16 motion. On February 5, 2014, ECSC filed an appeal of Houck's decisions to the U.S. Fourth Circuit Court of Appeals, in Richmond. On January 28, 2015, a three judge panel of that court held a hearing on the case. On March 31, 2015, the judges issued a unanimous decision vacating (overturning) Houck's orders and directing a rehearing in the District Court following the Colorado River principle.

The Fourth Circuit judges were very clear that a federal court is required ("must" "obliged") to conduct adjudication of federal law unless there is an extremely compelling reason not to do so. A federal court has only a very narrow window in which it can abstain from hearing a case involving federal law. The judges said Houck had met not one of the criteria for the right of abstention in this case. The judges all but ordered the District Court in Charleston to rehear the case and judge it under the terms of the Lanham Act. Their words could hardly have been any clearer. The three judges gave not the slightest nod to what had happened in state courts. No one could have missed the point the judges made that federal law takes precedence over state law.

Thus, the case returns to Charleston. One should recall that Judge Houck, while he deferred, also ruled that the Episcopal Church was an hierarchical institution and that Mark Lawrence had renounced his ordained ministry in the Church. Thus, the case will resume in Charleston on strong ground for the Episcopal Church side.

Which federal judge will hear the case? Rumor has it the case may go to one of the other four judges of the U.S. District Court in Charleston. Two of the four have already shown attitudes that might be considered favorable to the Episcopal Church.

Judge Patrick Michael Duffy was the one who handled the Church insurance case. On January 9, 2014, Duffy ruled that the Church Insurance Company of Vermont must provide benefit coverage for the Episcopal Church diocese (ECSC). This gave de facto recognition of legal legitimacy to the Church diocese. On March 5, 2014, Duffy denied a petition to reconsider the decision. Later, ECSC made an advantageous settlement with the insurance company.

Judge Richard M. Gergel was the one who legalized same-sex marriage in South Carolina. In so doing, he overruled an amendment to the state constitution that had been ratified by an overwhelming majority of the voters.

Another of the judges is ninety-four years old and has been a "senior" judge for twenty-five years. Judge Sol Blatt, Jr. has served on the court since 1971. One may doubt that he would take this particular case.

The other is Judge David C. Norton. He is a graduate of the University of the South, the Episcopal Church college at Sewanee, Tennessee. He has served on the bench since 1990 having been appointed by President George H.W. Bush.

Therefore, if Judge Houck does not resume the case, it is likely to go to a judge who may well favor the Episcopal Church side, or at least give every chance to the Church to make its case (as opposed to the predisposed state court). Now, it is undeniably true that the Episcopal Church lawyers will have a serious challenge. They must prove that the Lanham Act governs this matter and that Lawrence has been guilty of violating the Act. That will not be easy to do. They have their work cut out for them.

In conclusion, it is wrong to assume the Episcopal Church has lost its case in court in South Carolina. Far from it. The state court ruling is on appeal, probably to the state supreme court. Even more encouraging for Episcopalians is the federal court case now in process of returning to Charleston. The federal judge will conduct that case under federal law. Since the Episcopal Church is a national organization, it stands a better chance of winning in a national court. We should not jump to conclusions about what the District Court will do, but we should also keep cautious optimism about the future. Let's hold that in mind as we observe the holiest time of the year.