THE BEGINNING OF THE END
This moment has been a long time coming. It was thirty-five years ago that the first seeds of schism were planted in South Carolina, fourteen years since the Diocese of South Carolina began to veer away in earnest after the Robinson affair, thirteen years since the first parish (All Saints of Pawleys Island) bolted the Episcopal Church, nine years since Mark Lawrence became bishop, nearly five years since the schism, and four years since the law suits began. We waited on the circuit court trial for eighteen months. We waited again for a seemingly interminable twenty-two months for the South Carolina Supreme Court to render its decision. If you are now feeling terminal fatigue, you have every reason to feel that way; and you are not alone. We are all exhausted.
Thus, it is with a certain amount of blessed relief that we now face what appears to be the beginning of the end of the sorry legal war between the two sets of former friends, both claiming to be good Christians, both claiming to be the true heirs of the grand old Episcopal Diocese of South Carolina. Scandal. The litigation in state court is almost certainly going to end in the next few months, and probably sooner rather than later. The federal court proceedings will end probably within a year or so. I will go out on a limb and say that a year from now, August of 2018, the litigation will be over. I believe the chances are better than even that the Episcopal Church and her diocese, the Episcopal Church in South Carolina will prevail in both state and federal courts.
As for the state supreme court, the burden is now on the DSC attorneys to prove that there were errors in the August 2 decision. That is a tall order. If it turns out that the five justices who rendered the decision will sit in judgment on the Petition for Rehearing (due Sept. 1), it is inconceivable they would change their opinions. Justices/judges almost never reverse their written decisions on their own. DSC could appeal the SCSC decision to the U.S. Supreme Court but it is highly doubtful that SCOTUS would take the case. The entire case of DSC rested on state corporate and property law.
As for the federal court, there has been a dramatic change. Judge Richard Gergel has taken the case of vonRosenberg v. Lawrence. He was the third federal judge to be assigned the matter since Judge Weston Houck's death in July. Gergel is a no-nonsense, fair, reasonable, and highly efficient judge who acts asap. What a refreshing change. He is almost the opposite of Judge Houck who seemed simply overwhelmed by it all. Time and again Houck simply deferred to the state courts, even when he was directly ordered to proceed by the U.S. appeals court.
Gergel had the case only a few days when he sprang into action calling the lawyers in, and on August 8, issuing a scheduling order. Discovery is to be finished by December of 2017. Trial is to be held in March of 2018. Where has Gergel been all this time? Why do not we have more judges like this? A week after the scheduling order, on August 15, the Episcopal Church filed a motion with Gergel to be added to the case along side the Church diocese. Seven days later (Aug. 22), DSC lawyer Henrietta Golding filed a response strenuously objecting to the inclusion. The very next day (Aug. 23), Gergel issued an eight-page "Order and Opinion" granting TEC's motion and rejecting every one of Golding's arguments.
Probably the most important part of Gergel's Order was his firm resolution to adjudicate this case. It involves federal law in a federal court. He pointed out that every one of the five state supreme court justices deferred to the federal court to resolve the federal issue of trademarks. With this, Gergel signaled loudly and clearly that he fully intended to resolve this dispute and to do so with dispatch. If Gergel's early thinking is any sign for the future, the TEC side has every reason to be optimistic. I cannot imagine Gergel will let this case last any longer than necessary.
Is an out-of-court compromise settlement possible? Anything is possible, but, in my opinion, it will not happen here. The Church offered a generous settlement in 2015. The DSC leaders rudely threw it back in the lawyers' faces. If the parishes had taken the offer, they would now have full ownership and control over all parish properties. At this point the Church has the advantage and the momentum. I see no reason for the Church to make a settlement, but I am only speaking for myself.
Since the August 2 decision returning 29 parish properties to the Episcopal Church, along with the diocesan properties, the DSC leaders have collapsed into despair flailing about for guidance. Their problem is of their own making. All along they consistently declared every legal decision to be God's will. Now they are a loss to explain the state supreme court's ruling. They have no explanation.
The problem of DSC now is how to retain institutional integrity. Soon, the clergy and communicants of DSC will be given a choice of staying with the buildings and returning to TEC, or leaving the buildings and going off to form churches in exile. It is a terrible choice. The DSC leaders are desperate to keep the local churches together.
One of the great ironies in the history of the schism concerned local rights. The DSC leaders insisted all along that the local parishes would control themselves and their properties, hence the quit claim deeds. However, from the start the DSC leaders did all they could to bind the local parishes under the control of the diocese. For a long time before the schism, they worked hard to keep the parishes loyal to the diocese. At the time of the schism, they leaned on the parishes to sign a "Commitment" form to make the parishes stay in line with DSC. When they filed their lawsuit against TEC, they bound 35 parishes into the suit thus making it impossible for them to do anything but support DSC. In 2015, they summarily rejected TEC's offer of settlement, and did so apparently without consulting the parishes. For years now, the DSC leaders have made it as hard as they could for the local churches to act independently thus contradicting the stated reason for the schism.
On the most fundamental level, the schism was not about property, or local rights. It was basically about enacting the DSC's vision about the Anglican Realignment. They believed that TEC had devolved into hopeless secular humanism (as approving of homosexuality) and must be either killed or rendered into impotence as an American cultural force. The "Realignment" would raise up an "orthodox" version of Anglicanism in America to replace the fatally corrupt old Episcopal Church. The Anglican Church in North America came along in 2009 as the "orthodox" replacement for TEC.
The problem with this scenario is that the Anglican Realignment has failed. The Episcopal Church remains. The Episcopal Church is firmly in place as the Anglican branch in the United States. The Anglican Communion, and the Archbishop of Canterbury, have rejected the claim of ACNA to be an Anglican province. It is neither Anglican nor a province. Any pretense to either is only self-proclamation. Thus, the DSC's schism from the Episcopal Church has been a failure. DSC is now outside of the structure of the Anglican Communion with no hope of ever being in the Anglican Communion. The Anglican Realignment has failed. Not every idea that sounded good to start with turns out to be so (we have all been there).
The DSC leaders have called for a day of prayer and fasting on August 30. This is a slightly pathetic, obviously desperate, last minute appeal to Heaven to save them. It is a bit late. Interesting that they called for no such appeal before the state supreme court hearing. At that time, they were just sure God would carry them to victory. I suggest that all good Christians pause on August 30, and join in the prayers to Heaven, praying that God's will be done and that everyone on both sides will find the courage and faith to accept whatever finally happens in the courts.
In the end our fervent prayer should be that this beginning of the end of litigation will also mean the beginning of the end of the schism, the most destructive event in the 222 year history of the Episcopal Diocese of South Carolina.