MORE THOUGHTS 

ABOUT THE SC SUPREME COURT DECISION

If you are feeling "schism fatigue," you are not alone. I think we are all exhausted. After all, the process of moving to schism started 35 years ago [!]. The schism itself occurred almost 5 years ago. The two sides have been at war in the courts for 4 and a half years. We waited on the state Supreme Court for 22 months. It is no wonder we are all emotionally spent. However, one should not get wiped out now. There is much more to come and it make take years for it to finally conclude. 

I continue to be amazed at the interest in what is going on. This blog has had 5,000 hits since the court decision of Aug. 2. I am trying my best to relate information to a hungry public.

What I want to do now is review where we are and where we are likely to go in the foreseeable future. ( I remind everyone that I am not a lawyer or a legal expert, just an ordinary layman. These are my own views.)

WHAT DID THE SC SUPREME COURT RULE?

First, understand that decisions of the South Carolina Supreme Court (SCSC) are by majority vote of the five justices.

The majority decision has the weight of law. It must be followed by all the courts in the state. The decisions must be enforced by the law enforcement officials of the state.

SCSC is the highest state court in SC. There is no appeal possible in the state. The only court above SCSC is the Supreme Court of the United States (SCOTUS).

The primary decisions of the SCSC on August 2 were:

---29 parishes are to return control of their properties to the Episcopal Church (TEC) and the Church diocese, called the Episcopal Church in South Carolina (ECSC).

---7 parishes may remain in sole control of their properties (St. Andrew's of Mt. Pleasant, in the ACNA Diocese of the Carolinas, and 6 in the independent Diocese of South Carolina (DSC).

---Camp St. Christopher belongs to the ECSC.

WHAT DOES THE DECISION MEAN?

---The 29 parish properties will return to the control of the Episcopal Church bishop, "Skip" Adams. The clergy and laity who remain on these properties and do not recognize the authority of Bp Adams would apparently be in violation of the law. Mark Lawrence will have no authority over these properties. Presumably Church control could be enforced by court order. What Bp Adams does about these local properties would be up to him and the Episcopal Church authorities per the Dennis Canon which holds that all parish property is held in trust for the Episcopal Church and the Episcopal Church diocese. 

---The 6 parishes that keep full control of their local properties would presumably continue as the DSC. Since none of these is in Charleston or its suburbs, DSC would have no property in this area. 

---The old Diocese of South Carolina lies divided into four pieces, All Saints of Pawleys Island, St. Andrew's of Mt. Pleasant (both in ACNA Diocese of the Carolinas), DSC (now a diocese of ACNA), and the Episcopal Church diocese.

---The court decision only applies to the property. People, of course, are free to choose their own religion. Those now occupying properties to be returned to TEC may choose to stay and return to TEC, or leave and create other communities in other quarters. What communicants do about that is entirely up to them.

WHAT IS LIKELY TO HAPPEN IN THE NEAR FUTURE?

Nothing will change in the immediate future.

The SCSC decision of Aug. 2 did not include specific directions for enactions.

DSC has until September 1, 2017, to file a petititon for a rehearing in the SCSC.  In my view, there is absolutely no chance the SCSC will grant a rehearing. Here's why:

A rehearing would be before the present Court. Since the original hearing of Sept. 23, 2015, two justices have retired, Toal and Pleicones. Both participated in the decision. Two new justices have taken the bench; both had nothing to do with the decision of Aug. 2. They would be starting from scratch.

Although Justice Pleicones wrote the lead opinion for the majority, it was Justice Beatty who finally settled the decision. 

The two sides (Pleicones & Hearn v. Kittredge & Toal) were deadlocked in a bitter confrontation. Beatty stepped in to make a compromise.

In the course of deliberations, Beatty became Chief Justice of SCSC. The case seemed impossible to end with the two sides intractable. To bring the case to an end (remember this took 22 months) and to preserve the institutional integrity of SCSC (a decision had to be rendered), Beatty arose to give something to both sides. To K & T, he agreed with the local view that a national institution cannot unilaterally impose a trust on a local property owner without the written agreement of the title holder. He said the Dennis Canon was a trust, but not one that could be applied in SC in and of itself. To P & H, he agreed that 29 of the 36 parishes in question had done just that, had created in writing trust interests for TEC and its diocese. Therefore, Beatty decided that these 29 had to return to TEC/ECSC control. It was Chief Justice Beatty who really decided the outcome of this case.

Since Chief Justice Beatty was the essential core of the ruling, any rehearing would directly confront his decisions. It is unimaginable that two new justices of SCSC, who had nothing to do with the ruling, would blatantly defy their chief and discard his words. If they did, this would poison the court's working relationship forever.

Moreover, it is beyond belief that the two new justices would want to start from scratch and relive this extremely difficult and complicated case. Remember they have dozens of other cases at hand. My prediction is that the new justices will avoid the Church case like the plague.

To get a rehearing before SCSC, the DSC lawyers would have to demonstrate errors in the Aug. 2 decision. Again, going against the decision will be going against the Chief Justice. How Runyan et al, tiptoe around this will be fascinating to watch.

Judges and justices are loath to revisit their own written opinions and almost never reverse their own judgments on their own. 

To me, it seems inconceivable that the present SCSC would reverse the Aug. 2 decision. To do that, K would have to convince both of the new justices to go along, something I think they are most unlikely to do.  

BEYOND SCSC

If SCSC affirms their Aug. 2 decision, which I think they will, what happens then? This would be the end of the matter as far as the state courts of SC are concerned. However, DSC lawyers could appeal the Aug. 2 decision to SCOTUS.

Runyan et al. would have 90 days in which to file an appeal with SCOTUS.

It is possible but not probable that SCOTUS would take the appeal. Here's why:

-SCOTUS takes only 1% of the cases appeal to it. So, chances of being accepted are tiny. 99% of appeals are rejected.

-SCOTUS, as the high court of the nation deals only with issues of national importance, and only with relatively few of those, usually the most urgent.

-SCOTUS shies away from local issues.

-DSC lawyers would have to show why the SCSC decision was in error. At present, DSC lawyers are arguing that the SCSC justices did not follow sufficiently the state laws on property and corporations. If they go to SCOTUS and present such arguments, they are likely to be dismissed. To my understanding, DSC lawyers are not arguing constitutional issues, only local law. 

WHAT ABOUT THE FEDERAL CASE?

In March of 2013, Bishop vonRosenberg entered a suit in the United States District Court, in Charleston, against Mark Lawrence, vonRosenberg v. Lawrence. He charged Ml to be in violation of the federal Lanham Act that protects trademark and copyright infringement. In essence, vonR asked the court to recognize him, and not ML, as the legal bishop of the Episcopal diocese of South Carolina. In other words, vonR asked the court to recognize the Church diocese as the legal heir of the pre-schism diocese and entitled to all the rights and assets entailed therein.

After Judge Houck's death last month, the case moved to Judge Patrick Duffy. Recently, the case has been reassigned to Judge Margaret B. Seymour, senior judge in the U.S. District Court, in Columbia. Seymour is now in charge of the case.

It is most likely vonR (now Bp. Adams) will win this case. Here's why:

-The U.S. Court of Appeals, in Richmond, has twice ordered the District Court to adjudicate this case. It is inconceivable Seymour would ignore this.

-Houck had deferred to the state court. Seymour cannot defer since there is no more state case (or will not be after SCSC affirms its decision). The federal court will have to adjudicate this case.

-SCSC gave clear opinion in the direction of the federal court. It found ECSC to be the legal heir of the pre-schism diocese. SCSC also declared TEC to be hierarchical, that is, that the national Church has authority over the local dioceses. SCSC also said federal trademark law takes precedence over local, and therefore, the federal court would have to resolve issues of "marks," or names and titles.

-If Seymour agrees with SCSC that TEC is hierarchical, she will have to recognize vonR as the legal bishop of the Episcopal diocese and entitled to all that means.

-Federal courts have consistently sided with TEC in disputes of property.

If DSC fails in SCSC, fails to get SCOTUS to take the case, and loses in the U.S. District Court, It can appeal the District Court decision to the U.S. Court of Appeals, in Richmond. It seems to me most unlikely the appeals court would agree.

All of this means that litigation is likely to go on for a long time, perhaps several years. I know, at this point, no one wants to contemplate years more of this mess, but unfortunately, that is the reality.

Of course, one should recall that in 2015, TEC offered a compromise settlement with the schismatic diocese. The offer was to give the rebel parishes full control of their local properties in return for the rights and assets of the pre-schism diocese. The diocesan ruling clique immediately and furiously rejected this. I wonder if the offer might still be on the table.

WHAT DOES THE FUTURE HOLD FOR THE TWO DIOCESES?

At this point, one may reasonably conclude that the Episcopal Church and her diocese will regain the titles, rights, and assets of the pre-schism diocese as well as most of the local properties, including all of the Episcopal churches of Charleston and its outlying area as well as Camp St. Christopher. This means it will also regain the missions of the old diocese as well as the diocesan headquarters on Coming Street.

DSC may be reduced to 6 pre-schism parishes, a few misisons, and whatever congregations they can form outside the old properties.

Whatever, both sides have a great deal of difficult work ahead. There will be many hard choices along the way that have to be made. They cannot be avoided.

By all appearances, the road ahead is long and rocky. The greatest test is yet to come, that is, how to work out the best relationships between two former sets of friends. Everyone involved is going to have to reach deep into his or her religious beliefs and values and decide how they are to affect personal behavior near and far. Everyone is being put to the test. The world is watching. They will judge Christians on what they do and not what they say. Whatever happens, the people of faith now divided into unhappy camps must find some way to live together as the best Christians they can be.