ONE YEAR:
Reflections on the SC Supreme Court
Hearing a Year Later

 

 

 

September 23, 2016, marks one year since the Supreme Court of South Carolina held a hearing on the Church case. We are all still anxiously awaiting the Court's decision. 

 

In the last few days, I have gone over again the hearing transcript and the documents around it. Here are my thoughts about what has happened and what is happening in the Court. I offer these only as my opinions.

 

---The case before the Court is an appeal of Judge Diane Goodstein's circuit court decision of February 3, 2015. In short, that ruling was: --the Episcopal Church (TEC) is congregational, --the Diocese (DSC) is an independent self-governing entity, --the parishes are the owners of the properties, --DSC properly amended its corporate documents to legally withdraw from TEC. This was a total victory for DSC. 

 

---DSC asked the state Supreme Court (SCSC) to affirm Goodstein's decision. TEC/ECSC asked SCSC to reject the decision and write a new one.

 

---The five justices of SCSC conducted the hearing for about an hour before noon on September 23, 2015. The proceeding was led and dominated by the Chief Justice, Jean Toal. Other justices were Donald Beatty, Costa Pleicones, John Kittredge, and Kaye Hearn.

 

---Soon after the hearing, perhaps the same day, the five justices met in private and voted on a decision. One justice had already been assigned to lead the case. My guess it was Toal, who came loaded with documents to the hearing and dominated the entire hearing from start to finish. The majority then started writing their decision and the minority, if there were any, started writing their dissenting opinions either together or separately. Along the way and while the decisions were being drawn up, justices could change their votes, so that the majority/minority dynamic could change. Only when all justices were satisfied would they release the written opinions.

 

 

THE PROBABILITIES OF WHAT HAS HAPPENED

 

These are my best guesses at the moment.

 

---The justices unanimously rejected Goodstein's decision. This was clear during the hearing. Toal and Hearn eviscerated it. Not one justice had one word of support for it. They had two problems with it 1-the very lopsided way Goodstein had conducted the trial and 2-the injudicious written decision. Toal and Hearn were particularly appalled at the way the revered experts professors Edgar and McWilliams had been treated in the trial. Thus, the court rejected DSC's request to uphold the decision and granted TEC/ECSC's request for a new opinion.

 

---Another choice of the justices was to agree with parts and disagree with other parts of Goodstein's order and remand it to her for re-adjudication under certain guidelines. If they were going to do this, I think we would know it by now. I doubt that remand was their choice.

 

---The justices probably decided to write a whole new decision, and that is where the internal divisions showed up. What would the new decision be?

 

 

MY GUESSES AT THE CAUSE OF THE LONG DELAY

 

---In the hearing the justices were in unanimous agreement that Goodstein's decision was unacceptable. That is all they agreed upon.

 

---Toal and Hearn took their objections down entirely different paths. They became the competing  leaders for the new decision.

 

 

TOAL'S SIDE

 

---Toal seemed to be primarily interested in local corporate and property rights. I saw two main points of hers: 1-the "settlor" (property title holder) must establish in writing  a trust for another party (the implication was that TEC could not impose a trust by itself), 2-a body incorporated under the state laws of SC is protected independently by the state laws.

 

Toal excoriated DSC lawyer Alan Runyan perhaps for getting the courts entangled in what she considered issues of lesser importance. After she raked him over the coals about what she apparently saw as Runyan's misuse of the 2009 All Saints decision, just before the end of the hearing she brought him back and spoon-fed him apparently what she saw as his two main arguments. She asked of Runyan: "They [DSC] 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?" "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?"

 

When Hewitt made his brief closing rebuttal, she hammered home the same issues. She said to him: "So once the, let me see if I get you, 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 other operational documents are properly amended to do so?" "What corporate, what constitutional documents were violated by amending the purpose to withdraw their accession from the national church?"

 

Thus, it seemed to me that Toal was trying to settle this case under state corporate law, in favor of DSC. It must be remembered that she was the author of the 2009 state Supreme Court decision called All Saints. In that, she had made two main points: All Saints parish was the owner of the property under a 1903 quit claim deed, and All Saints had properly amended its corporate documents to withdraw legally from the diocese.

 

Justice Beatty made only two brief comments in the hearing. He was the only other justice there who had been part of the All Saints decision. He had joined in it and had signed it. My guess is that he remained with Toal on this one.

 

 

HEARN'S SIDE.

 

---In the hearing, Justice Hearn advocated strongly and relentlessly for the Church side: TEC is hierarchical, there is no inherent conflict between hierarchy and neutral principles, the Dennis Canon was in effect as part of the accession to the Constitution and Canons of the Episcopal Church, and the court should defer to TEC as a hierarchical religious institution.

 

---If the scenario of a Toal-Beatty v. Hearn split is true, this left two justices as the deciding factors, Pleicones and Kittredge. At least three justices were required for a majority decision. Toal-Beatty had to bring over one of them. Hearn had to sway both of them.

 

---Which way did Pleicones and Kittredge lean in the hearing? This is difficult to answer because each said relatively little. It seemed to me that Pleicones probably favored the Church side. He was a Greek Orthodox and certainly understood hierarchical institutions. (Of course, Toal, a devout Roman Catholic also understood all of the meanings of hierarchy.) Pleicones made four comments that may have revealed a pro-Church attitude. As soon as Hewitt opened his presentation to the court, Pleicones broke in to raise the issue of whether the Episcopal Church was hierarchical. Later he asked how the case was different than that of All Saints. At another time he questioned the effect of a trust on parish property. Perhaps Pleicones's most important remark came when Runyan declared: "The Dennis Canon is not religious doctrine. It's purportedly declaring an interest in property." Pleicones responded, "It's a governance measure though, is it not?" This seemed to indicate that Pleicones might have had a favorable attitude toward the Dennis Canon. My guess is that Pleicones probably joined Hearn.

 

---To me the biggest mystery of all was Justice Kittredge. He made more comments in the hearing than Beatty and Pleicones. He was mostly concerned with clarifying the issues and the positions of the two sides. As Pleicones, he wondered about hierarchy and the relevance of the All Saints decision. Once when Runyan was defending the parishes' right to control their property, Kittredge asked him, "I'm just wondering if, does your analysis there, is it impacted if we determine that this is a hierarchical church? Could your clients unilaterally take the steps they took if it's determined to be a hierarchical church?" Runyan said hierarchy was completely irrelevant. It did not seem to be irrelevant to Kittredge. Toward the end, he made the most enigmatic remark of all in response to Toal's question to Hewitt about amending corporate documents. Kittredge said, "If they are properly amended. I have no problem with it. What you're [Hewitt] saying is, it's got to be amended in accordance with the rules regarding amendment?" 

 

The problem was in deciding whether the Diocese had amended its corporate documents "properly." That got down to a basic difference. The Church side argued that the DSC was incorporated in 1973 explicitly "under" the Constitution and Canons of the Episcopal Church. The DSC lawyers argued that DSC had the right to amend its corporate charter to unilaterally withdraw its recognition of the Constitution and Canons of TEC regardless of what it said in 1973. The question then that the justices had to decide was whether DSC had the right to remove itself at will from TEC. I do not see how they could decide such until they had determined whether or not TEC was hierarchical. By discarding Goodstein's decision off hand, they indicated a leaning away from the congregational interpretation.

 

One very important event has happened since the hearing that will certainly impact on the justices' decision(s). On April 5, 2016, a California court of appeals ruled in favor of the Church in the San Joaquin case. That court made two major points relevant to SC: 1-the Episcopal Church is hierarchical, and hierarchy is not incompatible with neutral principles (the CA courts followed neutral principles), and 2-the earlier decision in the Diocese of Quincy case in Illinois was irrelevant to California. The state courts in Illinois had ruled in favor of the local entity. The breakaway side declared the Illinois decision to be the law of the land. The problem was that state courts have jurisdiction only in that state. The California court ruled that the Illinois decision had no bearing in California because the state laws were different. Thus, unless the state laws in South Carolina are identical to those of Illinois, the Quincy decision in favor of the breakaway diocese would have no relevance to South Carolina. The California decision of April 5 could have had a major impact on the writing of the supreme court decisions in South Carolina. If so, it would be in favor of the Church side.

 

Bottom Line----my wild guess is that the reason for the long delay in a decision is that SCSC split. Toal-Beatty were for DSC and Hearn-Pleicones were for the Church. The big question mark then is how Kittredge came down. It is impossible to tell from his remarks in the hearing.

 

When will we know? It is unusual for the court to go for more than a year. However, given the size and complexity of this case that involves the most basic principles of the Constitution, it should not be surprising that it will take a long time to settle. I think chances are we will have a decision before the end of this year. But then, your guess in all of this is as good as mine.   

 



 

THE PROBLEM WITH DSC'S AFFILIATION "DISCERNMENT"

 

 

The Diocese of South Carolina's website has posted a report from the clergy conference of 14 September concerning the diocesan discernment of affiliation with the Anglican Church in North America. The diocesan task force on affiliation was created two years ago and hand-picked by Bishop Lawrence. Last March, it recommended affiliation with ACNA. This guarantees it will join ACNA. The DSC has never denied anything to Bishop Lawrence.

 

In reading the report, I see a major problem. The diocesan leadership is promoting the assertion that the ACNA is a localized institution ruled from the ground up (read the report here ). The idea that power in ACNA rests at the bottom is not true. Communicants of DSC need to understand this before they affiliate.

 

In the circuit court trial of July 2014, the witness on the stand for St. Michael's of Charleston amused some listeners by declaring that no one in the leadership of that parish had ever read the Constitution and Canons of the Episcopal Church. Well, the Constitution and Canons of ACNA are freely available on the Internet for everyone to read at ACNA>Governance. I highly recommend that every communicant of DSC read them. You can find them here ).

 

 

I have already made two posts about the DSC affiliation with ACNA:

 

March 29, 2016---"South Carolina and the Anglican Church in North America."

 

April 28, 2016---"A Cautionary Note for the DSC."

 

 

The idea that DSC will govern itself is simply not true and can be understood by a careful reading of the governing structure of the ACNA. The ACNA is misleading in suggesting that power rests at the bottom by incorporating the principles that local entities will own their own properties and will have the right to secede from the ACNA at will. One should recall that DSC voted to leave the Episcopal Church under the claim it was too authoritarian. The issues of property and the right of secession were major points in the litigation against TEC, such as the circuit court trial of 2014. If communicants assume they are joining a group that will achieve local rule, they are mistaken.

 

The ACNA is actually an authoritarian organization with power concentrated at the top. At the very top is an archbishop. TEC has no archbishop. Every bishop in ACNA is required to swear personal loyalty to the archbishop. Bishop Lawrence will be directly responsible to a superior authority. Most importantly, the people of DSC will lose control over the choice of bishops. This recently happened in Pittsburgh. A diocese may elect a bishop, but he (women cannot be bishops in male-chauvinist ACNA), cannot take office until approved by two-thirds of the bishops of ACNA. This gives those bishops near dictatorial power over DSC's choice of new bishops. In TEC new bishops are usually approved by at least half of the diocesan standing committees, a much lower bar. In short, the people of South Carolina will lose control over their right to choose their own bishop. Again, if these people think they are getting local control they are sadly mistaken. Yes, they will have their local properties and yes, they can withdraw from ACNA at will, but while in ACNA, the people of South Carolina will follow the will of the bishops of ACNA. This is far more authoritarian than TEC ever was. The irony here is rich. I urge the good people of South Carolina to read the C and C of ACNA.

 

Of course, joining ACNA is problematical in other ways. It is not now and almost certainly will never be a province of the Anglican Communion. ACNA is a 2009 creature of an alliance between an anti-homosexual rights minority of ex-Episcopalians in the U.S. and like-minded Anglican archbishops in equatorial Africa. It was formed to promote a reactionary social policy of opposition to the rising demand for equal rights for homosexuals and equality for women. The Third World fundamentalists who formed GAFCON aimed to break up the Anglican Communion into two groups. They failed. In the primates' gathering at Canterbury last January, they collapsed. They managed to get only a slap on the wrist for TEC. At the same time they abandoned ACNA. They said if ACNA wanted to join the Anglican Communion it would have to go through the Anglican Consultative Council. That was the kiss of death. GAFCON abandoned ACNA. ACNA is now out in the cold where it is almost certainly going to stay. DSC's joining ACNA will not make it part of the Anglican Communion.

 

Bottom line--DSC is not now in the Anglican Communion. It will not be in the Anglican Communion after it joins ACNA. GAFCON has abandoned ACNA. To be in the Anglican Communion, DSC must return to the Episcopal Church.  

 

 

 

 

PRAYERS FOR BISHOP SPONG

 

 

The Rt. Rev. John (Jack) Spong suffered a stroke last Saturday. Keep him and his family in your prayers. For more information, see the announcement in Episcopal Café here .

 

Bishop Spong, now 85 years old, was bishop of Newark from 1979 to 2000. He was born in Charlotte, North Carolina and was graduated from Chapel Hill.

Spong was arguably the most important "liberal" Episcopal Church theologian and writer in the late twentieth century. His prolific writings called on contemporary Christians to reinterpret the traditional religion in light of the realities and needs of modern civilization. (Conservatives on the other hand insisted that Christianity was an absolute religion of "received" unchanging truths that must be transmitted unchanged.)

In modern Church history, Spong is remembered as the most prominent bishop advocating for the cause of the full inclusion of homosexuals in the life of the Episcopal Church. In 1979, General Convention passed a resolution disapproving of the ordination of practicing homosexuals. Throughout the 1980's the understanding was that such ordination was "inappropriate." However, the Church did not make it a matter of canon law or even forbid it. The conservative/liberal split on this issue in the Episcopal Church was this: conservatives regarded homosexual behavior as innately sinful; liberals saw it as amoral, that is, inherently neither good nor bad. Conservatives insisted that non-celibate homosexuals not be allowed ordination. Liberals insisted that the Church should not bar open homosexuals from ordination. By around 1990, the division in the Episcopal Church was roughly into thirds, a third opposed to the ordination of homosexuals, a third favorable, and a third undecided. 

In 1988, Bishop Spong was the first bishop in the U.S. to establish the blessing of same-sex unions in his diocese. In 1989, Spong ordained an openly homosexual man. Presiding Bishop Browning, his council, and the House of Bishops all condemned Spong's action. However, they did not censure him. The 1990's turned out to be the time of the war between the anti and pro homosexual sides in the Episcopal Church. The issue rocked every General Convention of he decade. The highlight of the war, and its turning point, was the ecclesiastical trial of Spong's assistant, Bishop Righter, in 1996. What conservatives thought was going to be their Gettysburg turned into their Waterloo. Much to their chagrin, the court dismissed the charges and declared that there was no doctrine in the Episcopal Church forbidding the ordination of practicing homosexuals. After that, it was just a matter of time until homosexuals gained full inclusion into the Episcopal Church climaxing with the establishment of same-sex marriage in 2015. Spong had been the pioneer of it all.

In regards to the schism in South Carolina, Spong was the most important figure in the Episcopal Church outside of South Carolina except for Presiding Bishop Jefferts Schori. In the 1980's, during the episcopate of the evangelical Bishop Allison (1982-90), the Diocese of South Carolina came to focus, virtually to obsession, on Spong as the symbol of all that was wrong in the Episcopal Church and on homosexuality as the cancer destroying true religion in the Church from within. Indeed, Allison perhaps saw himself as the anti-Spong in the Church turning out his own theological writings in defense of conservative religion. This was the start of the 30-year journey to the schism of 2012. Bishop Salmon continued rallying the diocese throughout the 1990's in its campaign gainst Spong and the pro-homosexual lobby. Spong was the necessary enemy to rally the diocese against the mother church. By the time Mark Lawrence arrived in South Carolina to become bishop, in January of 2008, the stage had long been set for the run-up to the schism. Indeed, there was evidence presented in the 2014 circuit court trial of a conspiracy of the anti-Church party in the diocese to bring in Lawrence and have him lead the diocese out of the Episcopal Church with property in hand. In a very real way, the schism of 2012 was the Diocese of South Carolina's answer to Bishop Spong.

Thus, whichever side one is on, one has to see Bishop Spong as one of the most important figures in modern Episcopal Church history. Personally, I see him as a towering hero for human rights, a pioneer who went against the odds to stand up for what was right, endured hateful denunciations, and was finally vindicated by the majority of the Episcopal Church. There is an old saying that you can't make an omelet until you crack eggs. Bishop Spong cracked many eggs and made a great omelet.
May all of us who stand for human rights for all people pray for a great champion of those rights, Bishop Spong.

 

 



 

 

9 - 11

 

 

The world turns and history moves on. But what does history tell us? Are things getting better or worse? After a lifetime of studying history, I can tell you that my philosophy of history is that, on the whole, history is progress. The world is getting better in so many important ways. Yet, this progress is not steady and even. It moves in fits and starts. Along the road there are many catastrophic setbacks some of which are so intensely evil that at the time they make people think that the darkness has overcome the light. The Holocaust was one such event. We must not let the darkness overcome the world that God entrusted to us.

 

I think the great challenge we face in the contemporary world is to balance our enormous advances in science and technology with our morality. The former has given mankind the power on one hand to make a better world in so many wonderful ways or, on the other hand to destroy the world. The choices that we human beings make between the two will depend on the level of our moral understandings and applications. I define morality as the commitment to make a better world for the human beings around us. Will our morality promote us to make the best of things, or will our lack of morality leave us wanting and falling to self-destruction? As creatures given Free Will by God, it is ours to choose. 

 

For people of the present generation, 9-11 was the quintessential catastrophe. On a radiantly beautiful and cloudless September day fifteen years ago, all seemed well in God's world---until 1, 2, 3, 4 airplanes suddenly crashed and the world changed, literally out of the blue.

 

Where were you on 9-11? It is one of those days that everyone can remember exactly where they were when they heard the news. I was at my desk on my job as assistant head of the South Carolina Room of the Charleston County Library. The Library is on Calhoun Street, a few blocks east of Marion Square and just on the other side of Mother Emanuel Church. My phone rang around 9 a.m. and a staff member told me an airplane had hit the World Trade Center in New York. I turned on my computer to stare in disbelief. I called my wife at home on James Island to tell her to turn on the TV because a catastrophe had happened. She did. When the second plane hit I momentarily froze. I knew this was an attack by some kind of murderous force against the United States. Most of the library staff moved quickly and quietly to the staff lounge to watch a large TV. The room was crowded but eerily silent. Everyone stared at the screen. A few shed tears. A few whispered about relatives or friends in New York. I sat through the collapse of the two towers. By then I was one of those wiping my eyes. I could not take any more. I wandered back to my desk. I was too numb to absorb much of the rest of the bad news.

 

The library became like a tomb. The few patrons there ambled around as lost sheep. The staff mostly sat at their desks like zombies unable to think or do any work. At lunch I went out for a walk as I usually did. I liked to walk around the picturesque nearby neighborhoods as Ansonboro and Wraggsboro. Sometimes I went over and walked around Marion Square and down King or Meeting Streets to Broad. Sometimes I walked over to the waterfront in the aquarium area. On this day I found old Charleston strangely comforting. I do not know of another city that has suffered as much disaster, natural and man-made, as Charleston. Everything in the book since 1680: plagues, fires, hurricanes, wars, earthquakes. You name it. Yet that grand old city endured, and not just endured, soared in triumph over its adversities as her piercing church spires soared over the ancient streets. It was more charming, lovely, and beautiful on that day then it had ever been. I soaked it up. I needed it. I felt better knowing that the world too would endure against potential destruction just as Charleston had, time and again.

 

My wife came in to downtown and after work we walked down the unusually quiet streets over to the cathedral on Coming Street where Dean William McKeachie had scheduled a service after 5 o'clock. The nearly two hundred year old walls of old St. Paul's of Radcliffeboro never seemed so lovely and comforting. The place was crowded. As I recall we read the Great Litany. It was a somber, quiet, sad, but soothing lament. Afterwards we all dispersed reassured of God's presence but still too stunned to say much.

 

What good came out of 9-11? I think the jury is still out on that. I can think of a lot of bad: two unnecessary, destructive, expensive, and disruptive wars, a rising fear of foreigners in the United States, a hysteria for "security," and an escalating war on "terror." But who, where, what was the enemy? The "war on terror" was not the usual war. It was a new and frustrating combat against a foe that was elusive. Fighting the new terrorists would be like eating jello with your hands.

 

Plenty of good events have happened too since 9-11. One of those was today. "Skip" Adams was installed as the new bishop provisional of the Episcopal Church diocese of South Carolina. It is a sad "goodbye" to the great bishop "Charlie," but a cheerful "hello" to the new bishop "Skip." Life goes on. It goes on in spite of 9-11, of the Holocaust, or of the too-numerous other disasters of modern history. It goes on as does Charleston. We need to remember that today. We need to remember too on this somber anniversary the "big picture," history is progress and true progress is the reconciliation of imperfect humankind and perfect God.   

  

 

  

 

 

ANNIVERSARIES

 

 

 

Lately, I have been thinking a lot about anniversaries, probably because my wife and I just celebrated our Golden Wedding Anniversary.

 

Blog

 

There are three other anniversaries on the horizon that should be noted. One is the three year mark for this blog. I began it on September 11, 2013 (choosing 9-11 was a pure coincidence). Since then it has had nearly 150,000 "views" (149,375 to be exact). I never imagined when I began that so many people would care what I had to say. I hope my remarks have been thoughtful and informative. I appreciate all the emails I have received from my readers. Keep them coming. The most popular posting is "Chronology." Almost as popular, and much to my surprise, was my little essay on Donald Trump. It went viral on Facebook getting some 7,000 hits. Close in popularity was my modest tribute to Bishop vonRosenberg. To my surprise, it too went viral on Facebook with thousands of readers. It got the largest single one day viewing, at 3,000. I continue to be amazed at the power of the Internet and the pervasiveness of social media. This is truly a democratic age of information and communication.

(BTW, if you are wondering what is going on with the history of the schism that I have been writing for a long time now, I can tell you I am working on the last chapter, on the litigation. I hope the state supreme court decision will give closure and I can wrap it up. The manuscript is turning out to be long and detailed, well over a 600-page book as of now. When I spoke to Presiding Bishop Jefferts Schori about my history of the schism, she said put everything in it because a hundred years from now people will want to know the details. I think that was good advice. My aim is to get it out and published asap after the Court rules. I do not know yet the format, perhaps an e-book.)

 

Schism

 

Another anniversary coming up is one I had rather forget. Next month will mark the four year anniversary of the schism in South Carolina, October 15 to be exact. Oct. 15, 2012 was the day Presiding Bishop Jefferts Schori called Bishop Mark Lawrence and informed him of the Disciplinary Board for Bishop's decision to charge him with abandonment of communion. She informed Lawrence she had suspended him from all ministerial duties for the time being. After the call, Lawrence and the old diocesan ruling clique resolved to reject her orders and to put into effect their prearranged secret plan (Oct. 2) to remove the diocese from the Episcopal Church. This was the schism. Two days later, Lawrence  called Jefferts Schori and informed her that the diocese was no longer associated with the Episcopal Church. In effect, Lawrence abandoned the Episcopal Church which, of course, would include his consecration vows to conform to the government of the Church. The ruling clique called a special convention on Nov. 17 to rubber stamp this which it did.

 

The schism was not necessary. The issue of homosexuality, the direct cause of the schism, could have been dealt with under the arrangements of the Episcopal Church. Each bishop was left to choose whether he or she would allow the blessings of same-sex unions, and later of same-sex marriage. Bishop Lawrence could have remained in the Episcopal Church and simply disallowed these. Many bishops in the Episcopal Church have done so. The Diocese of South Carolina could have remained in the Episcopal Church and kept out equal rights for homosexuals. On this point, they gained nothing by leaving the Church.

 

What they gained, and everyone else too was a great deal of disruption and cost. Congregations were torn up from one end of the diocese to the other. The breakaway entity has suffered a 26% loss of active membership after the schism even while legal costs soar. The DSC has admitted to spending well over $2m for lawyers. We do not know the details of where the money came from or where it went as all of this is secret. The people of South Carolina have paid dearly for something that was not even necessary in the first place.

 

The future of DSC does not look good at all. They are about to join the Anglican Church in North America which is the proxy of GAFCON in the U.S. GAFCON calls ACNA a "province" and its archbishop a "primate" but no one else does. The Anglican Communion does not now and will never recognize ACNA as a province. Indeed, the January primates' gathering in Canterbury agreed that they would not admit ACNA as a province. That issue is now dead. ACNA will never be the replacement of the Episcopal Church in the U.S. So, what's the point of joining ACNA? None. The DSC is not now and almost certainly never will be in the Anglican Communion. The idea of being an extra-provincial diocese in the Anglican Communion is simply nonsense.

 

SC Supreme Court Hearing

 

The other anniversary approaching is the first year marker for the South Carolina Supreme Court hearing of September 23, 2015. We have all been on tender hooks for a long time now.

 

Steve Skardon has just posted a thoughtful reflection on this anniversary on his blog at scepiscopalians. I recommend it. He suggests that the cause for the long delay might be from disagreement among the justices on writing a decision. He speculates that former chief justice Jean Toal may have written a decision favorable to the DSC side only to have other justices reject it and move to write another. This is a reasonable theory.

 

However, I do wonder about the mechanics of that. The South Carolina Bar has a handbook on the working of the state Supreme Court that is available on the Internet (here). On Page 6:

 

"Step 4: Decision Conference. Following each day's oral arguments, the Court meets in closed conference. The assigned justice gives his/her analysis and recommendation, the Court discusses the case, and each member of the Court casts a preliminary vote, usually in descending order of seniority and beginning with the justice who has given the recommendation. When possible, the Court reaches a decision in each of the cases argued that day, but any decision is tentative until the opinion is issued. Immediately after the Court reaches its tentative decision in a case, the assigned justice prepares an opinion.

 

Step 5: Issuing an Opinion. After the justices agree on an opinion, it is issued, or filed with the Office of the Clerk of the Supreme Court, and made available...Until a decision is issued, any justice may reconsider his or her vote on the case."

 

What this says to me is that the justices made a decision on the church case immediately after the hearing last Sept. 23. The decision was by majority vote of the five justices. There is no way to know yet whether the vote was majority ( 3 or 4) or was unanimous (5). Afterwards the "assigned justice" (I guess Toal) drew up a written  opinion. It may very well be that some justices objected to parts of her written decision. I doubt that justices changed their initial votes later although they were allowed to do so under Step 5. It should also be remembered that the justices in the minority may write their dissenting opinions and may do so individually or together. Thus, I would question the suggestion that the justices rejected Toal's decision after she had produced a written opinion. It seems to me they must have made the decision on the outcome of the case at first, before any written decision appeared.

 

Here are my guesses on what is going on in the SC Supreme Court for whatever they are worth (which may be what you paid to be on this website):  ---the justices unanimously rejected Judge Goodstein's ruling of Feb. 3, 2015 (If they had simply validated it we would have known that long before now). ---the justices decided not to accept parts and reject parts of Goodstein's decision and send it back to her to be reheard in her court (Likewise, we would know that by now). ---the justices' initial vote was on a split decision. Both sides are requiring a great deal of time to construct their rationales (a unanimous decision would have moved along faster). The long delay says to me problematical internal disagreement. On that part, I am with Skardon.

 

The case before the SC Supreme Court is a very complex and complicated one that deals in some of the most basic constitutional issues in the nation. There are three big factors to keep in mind in contemplating the case. One is the All Saints decision of 2009, that was written by Toal. The next is Judge Goodstein's decision. The third is the state Supreme Court hearing of last September 23.

The All Saints decision ruled that All Saints parish of Pawleys Island had legally broken away from the Episcopal Diocese and that All Saints had retained sole legal ownership of its property. Since this decision was not appealed to the U.S. Supreme Court, it still stands as the only case in the U.S. finally settled on the side of the local parish against the diocese. It has been almost universally rejected and ignored by the rest of the states. The Court made three crucial points in its All Saints decision: 1---the Diocese did not have any interest in the property since it had given a quit claim deed to the parish in 1903 long before the Dennis Canon appeared (1979), and 2---the Dennis Canon cannot create a trust on its own for the Church and the Diocese. In SC law, only the title holder can create a trust for another party, and 3---All Saints parish had properly revised its corporate documents to separate itself legally from the Diocese. On the face of it, all of these should have been in the interest of the DSC side in last year's hearing, but that was not the case. Toal made it clear that All Saints was not necessarily the model to be followed. This was the author of that very decision speaking.

 

It seems to me the SC Supreme Court must make two big decisions in the church case: whether a diocese can leave the Episcopal Church, and whether a diocese can leave and take the property with it. These questions are fundamental to the entire case. These decisions require the Court to make some judgments about the structure of the Episcopal Church. There is no way to avoid this. However, they cannot go too far because that would violate the First Amendment requirement of the separation of church and state. I believe Judge Goodstein went too far in her decision, such as in the astonishing assertion that the Episcopal Church is congregational and organized from the parish upwards.

 

In my view, the difference in the All Saints case was that in that instance the diocese gave the quit claim deed long before the diocese and Church established the Dennis Canon. In Bishop Lawrence's case, however, he gave the quit claim deeds to all the parishes long after the Church and the Diocese had established the Dennis Canon as church law. That is why Toal wondered aloud if Bishop Lawrence had the right to do what he did. Under Church law he did not. He violated the Dennis Canon (as the Disciplinary Board said). However, the legal power of the Dennis Claim is still in doubt. Toal also made a point in the hearing that only the deed holder can establish a trust. It cannot be imposed from the outside. The Church side argued that the trust did go into effect as it was implied in the formal diocesan recognition of the Constitution and Canons of the Episcopal Church.

 

What all this boils down to is whether the Episcopal Church is hierarchical or not. That is basically what the SC Supreme Court has to decide. I do not see how the Court can avoid this. "Neutral principles" alone does not resolve the issues. As we have seen two states have already come up with diametrically opposed decisions following the same "neutral principles" guideline, Illinois for the breakaways, and California for the Church. If the SC Court finds TEC to be hierarchical that should settle it for the Church side. If it finds TEC not to be hierarchical that should settle it for the independent diocesan side because recognizing state laws on corporations and property would favor them.

 

I suspect that the long delay reflects a serious division of opinion in the Court and a concerted effort on both parts to take their time and "get it right" this time in contrast to the embarrassment of their 2009 All Saints decision. My guess is that there is no unanimous opinion. The big question of the day then is, Who won the majority?

At this point there is no way for anyone to know what the majority of justices decided. We have no choice but to wait, however impatiently, for the high court of South Carolina to render its great decision. We can be certain that we will have a decision. We cannot be certain of when that will be. However, I will go out on (another) limb and say it will be here before Christmas. Historically speaking, it is very rare for the court to go more than 14 months on a decision.     

 

 

 

 

 

 

 

 

 

 

 

 

 

 



A REMARKABLE BISHOP,

A REMARKABLE THREE AND A HALF YEARS

The Episcopalians of eastern South Carolina are getting ready to say goodbye to their beloved bishop, the Rt. Rev. Charles vonRosenberg ("Bishop Charlie"). He is a remarkable man who has overseen a remarkable three and a half years.

The grand old Diocese of South Carolina which had grown strong over a long, glorious, and sometimes painful past, shattered into four pieces between 2004 and 2012: All Saints of Pawleys Island, St. Andrew's of Mt. Pleasant, the independent diocese under Mark Lawrence, and the remnant in the Episcopal Church diocese. In the end, an Episcopal diocese that once counted as many as 31,000 members, was left with 5,113 in the Episcopal churches. In the schism, the membership of the entire institutional structure of the diocese left the Episcopal Church in October of 2012. Not one Episcopalian remained as bishop, chancellor, standing committee, council, or trustees. The Episcopal Church had to start from scratch to rebuild the official structure of its diocese. From the start, only one name was seriously mentioned to be the new bishop.

On January 10, 2013, the Steering Committee leading the transition of the reorganization of the diocese unanimously nominated the Rt. Rev. Charles vonRosenberg to be the bishop provisional. Time was of the essence. DSC attorney Alan Runayn and his lawyer committee had entered a lawsuit against the Church six days earlier. vonRosenberg was well-known in South Carolina. Born in Fayetteville, NC, in 1947, he was graduated from UNC Chapel Hill and Virginia Theological Seminary. He served churches in North Carolina, Georgia, and South Carolina (as Greenwood) and was canon to the ordinary in Upper South Carolina from 1989 to 1994 and the bishop of East Tennessee from 1999 to 2011. Afterwards, he retired to Daniel Island in Charleston to enjoy his six wonderful grandchildren. When the call suddenly came for his service to the Church again, he did not hesitate. He did not turn away, He did not make excuses. He answered the call of duty with faith and resolution and left his retirement to take on what would become, no doubt, the hardest job of his life, rebuilding a shattered diocese. He was approved by acclamation of the special convention and installed in office by Presiding Bishop Katharine Jefferts Schori in Grace Church on Jan. 26, 2013.

A full accounting of "Bishop Charlie's" 3 and 1/2 year tenure would take a great deal of space. A summary is in order. When he began his episcopate, the diocese had 5,113 members in 19 local churches. Today there are around 7,000 in 31 local churches, 30 parishes and missions and 1 worshipping community. The first budget was $400,000, $175,000 of which was a grant from the national Church. Today the budget is $457,000, all of it from the diocese. From 2014 on, the diocese has been self-supporting. Bishop vonRosenberg's compensation package was about a third of that of Mark Lawrence's.

The bishop has overseen numerous occasions of joy that boosted diocesan morale and spirit enormously: special convention of Jan. 26, 2013 with the PB Jefferts Schori at Grace Church, Charleston; diocesan convention of 8-9 March 2013 at Grace; the Province IV bishops' conference of 25-27 June 2013 at Grace; annual convention of 21-23 February 2014 at Hilton Head; the Enthusiastically Episcopalian conference with PB Jefferts Schori, May 3, 2014 at Pawleys Island; annual convention of 14-15 November 2014 at Holy Communion/Calvary; annual meeting of 13-14 November 2015 at Pawleys Island, and the Presiding Bishop Curry weekend of 8-10 April 2016 in Charleston.

There were also difficult times too, not just in the endless and draining actions of litigation, but also with personnel. What to do about the clergy of the old diocese? There were 36 clergy present at the organizing convention. By June of 2013, the list of clergy in good standing totaled 74 (63 priests, 11 deacons). The most recent list, in 2014, showed 94 clergy (83 priests, 11 deacons). 103 clergy of the old diocese, who had taken vows of loyalty to the Episcopal Church, abandoned the Episcopal Church. Rather than deposing them, as he could have done, vonRosenberg gave them "release and removal" removing them from Holy Orders but leaving the door wide open for their reconciliation with the Episcopal Church, much as the Presiding Bishop had done with Bishop Lawrence on December 5, 2012. Two priests did return to the Church.

Bishop vonRosenberg showed great leadership also in regards to two old issues hanging over the diocese, racism and homosexuality. On June 17, 2015, a gunman massacred nine people in an evening Bible study group in Emanuel A.M.E. Church, on Calhoun Street, in Charleston. After the expected called for prayer and support, vonRosenberg oversaw an extensive program throughout the diocese to combat racism. On the matter of rights for homosexuals, vonRosenberg unhesitatingly forged ahead with full rights for all people. On July 8, 2014, he announced the diocesan plan for the blessing of same-sex unions in the church. On June 26, 2015, the U.S. Supreme Court legalized same-sex marriage in the nation. A few days later the General Convention of the Episcopal Church changed the canons of the Church to allow for same-sex marriage. Three weeks after that, Bishop Charlie announced that same-sex marriage would begin in the diocese on the earliest date possible, November 29, 2015.

Provisional bishops, typically retired members of the House of Bishops, are meant to be temporary, usually serving as a transition for a few years. After three years, Bishop vonRosenberg announced that he would end his tenure soon. He made the public announcement in January of 2016 and said he would serve at least through his already set schedule to June 26, 2016.

What to do about the future of the diocese has taken two tracks. In one, a Diocesan Futures Committee was set up on 5 November 2015 to begin a general planning for the future direction of the diocese. On March 15, 2016, they announced four feasible options for the diocese moving forward: 1-Full-time bishop (budget would have to double), 2-Part-time bishop, 3-Continue with a part-time provisional bishop, 4-merge with the Diocese of Upper South Carolina. The committee reported that #4 was the least likely. See http://www.episcopalchurchsc.org/futures-committee.html

 In the other, the Standing Committee has conducted a search process for a bishop to replace vonRosenberg. Their reports suggest an announcement is imminent. We should know momentarily the name of the new candidate. Once a choice is made, a special convention will be called to formally approve the new bishop. See
www.episcopalchurchsc.org/leadership-transition.html ; and www.episcopalchurchsc.org/news-blog/the-2016-clergy-conference .

Meanwhile, a grateful diocese is preparing to bid farewell to a remarkable bishop. A reception for the vonRosenbergs will be on Saturday, June 11, 4-6 p.m., at Porter-Gaud school in Charleston.

In sum, no one could have done a better job of leading the reorganization and rebuilding of the Episcopal Church diocese of South Carolina than Bishop vonRosenberg. Throughout the long months of hard work, he never complained and he never criticized the people who had forced the crisis to put him in this unexpected spot. He has never been known to say an unkind word about the other side. Too, he has never claimed that God is on his side alone.

The bishop, of course, was not alone in making a glorious resurrection of the diocese. Countless ordinary people from Okatie to Cheraw refused to be vanquished and met in homes, on boat docks, in bar-be-que restaurants, old schools, funeral homes, borrowed churches and wherever to keep alive an inclusive faith. They are all heroes too.

The schism has been an ordeal. It was unnecessary and unjustifiable. It caused a great deal of pain across eastern South Carolina. Nevertheless, out of the darkness came light, and that light was led by a man of courage, wisdom, resolution, and love. As sometimes happens in history, he was the right man at the right time in the right place. Accident? I don't think so. The Episcopalians of lower South Carolina, who have endured so much misfortune, should realize that they have also been blessed beyond measure.