NEWS UPDATE ---

SEPTEMBER 26, 2017

A great deal has happened in the schism since the South Carolina Supreme Court's (SCSC) August 2 decision siding with the Episcopal Church (TEC). Much of importance has occurred in just the last week or so. This is an opportune time to consider the latest events in the ongoing unhappy saga of the schism in South Carolina. In a way, matters are worse, and in a way they are better. First, let's take the worst.

THE CAMPAIGN AGAINST JUSTICE KAYE HEARN

We have reached a new low in the history of the schism. This is the darkest hour, and that is saying a lot. The independent diocese (DSC) is conducting an all-out, last-ditch campaign to reverse the state supreme court decision of August 2. Their goal is to overthrow the unwelcomed decision that went against them. Their desire to reverse the decision is understandable. It is the way they are going about it that I see as the problem. DSC is accusing Justice Kaye Hearn, who happens to be an Episcopalian, of unethical conduct and bias from a conflict of interest, charges that could be devastating to a justice of a supreme court. A justice or judge has to survive on an reputation for being judicial, that is, fair and unbiased. I see DSC's campaign against Hearn as having the effect, intended or not, of character assassination. If one has to win by destroying another person, is the winning worthwhile? I think not. For what shall it profit a man, if he shall gain the whole world, and lose his own soul? (Mark 8:36). 

We should all remember that one day all of this ugliness will be over; and then everyone will have to look in the mirror and say to himself or herself, I behaved as the Christian I claimed to be, I did the best I could for everyone involved. I think we will look back and see the awful smear campaign against Hearn as the moment that put every Christian to the test. I know, I know, we are called to forgive and I will one day, but I am sorry to say I am not there yet. I need more time. I am profoundly disappointed in the DSC leaders who felt that had to do this to Hearn. It is most unseemly.

Why is DSC going after Hearn? The stated goal is to reverse the August 2 decision that awarded 29 of the 36 parishes, and Camp St. Christopher, to the Episcopal Church and the Church diocese. The strategy is to nullify Hearn's part of the Aug. 2 SCSC decision and to remove her from future adjudication of the case. The decision was 3-2 in favor of TEC/TECSC against DSC. If Hearn's part is thrown out, that would leave the decision at a 2 (Pleicones, Beatty) to 2 (Kittredge, Toal) tie. A tie would mean that the Goodstein decision of Feb. 3, 2015 would stand as the final word. As we all know, Goodstein gave everything and then some to the DSC side. Thus, by kicking out Hearn's part, DSC would reverse the SCSC decision and leave Goodstein's ruling as the law. The chosen tactic for that strategy is to hound Hearn to recuse herself under charges of ethical violations and conflict of interest. DSC said since she was an active Episcopalian and member of the Episcopal Forum, she could not be an unbiased, impartial judge in this case. 

To my knowledge, such a strategy and tactic has never occurred in the South Carolina Supreme Court. What the DSC lawyers are doing is simply unprecedented. What makes their case even shakier is they never mentioned recusal before now. The DSC lawyers did not bring it up before the hearing of Sept. 23, 2015, during the hearing, or after the hearing for twenty-two months. How they think the demand would work now is beyond me. It just does not pass the common sense test. It is obvious they brought it up only now because the decision went against them.  If they had won on August 2, would they be raising the issue of recusal now? Of course, not.

I understand that the DSC side is extremely disappointed, dejected, and desperate after the Aug. 2 SCSC decision. They lost most of the properties after they had promised their people they could leave the Episcopal Church with the properties in hand. They failed to keep their promises. As 13,000 people stand to be have their church buildings returned to the Episcopal Church, DSC is desperate to keep as many of these people as they can for their diocese. It will be a hard task. One way they can keep the people with them is to de-legitimize the state supreme court decision in the public perception. That, I think, is the bottom line of this sorry episode. It seems to me the campaign against Hearn is really a campaign to turn the communicants of DSC against the SCSC decision and keep them with the independent diocese. 

Moreover, one needs to bear in mind that the DSC leaders see themselves as fighters in a culture war. They are trying to preserve what they consider true religion, that is, a narrow faith that abhors inclusion of and equality for non-celibate homosexuals and for women. This is what led them to the schism from the Episcopal Church, a body they had come to see as hopelessly infected with secular humanism.

Aiding DSC as allies in this culture war are the Palmetto Family Council and The Daily Caller, well-known right-wing political organizations. The PFC is a highly conservative political action committee in South Carolina devoted to opposing rights for homosexuals and for women. One may recall that PFC participated in, or perhaps led, a successful campaign early this year to block attorney Blake Hewitt from being elected to the bench of the state appeals court. See the article here . This was reprisal for Hewitt's role in representing TEC in the state supreme court. On August 29, PFC turned their guns on Hearn: "Thousands of SC Christians to be Displaced Due to Judicial Bias." Read the article here . At the end of the article, PFC called on readers to appeal to their state legislators to get Hearn to recuse herself. It is not going to happen.

Along the way, DSC decided to frame the issue as one of religious liberty. That became the rallying cry in September. On September 16, 2017, the Rev. Jeff Miller, published in the Charleston Post and Courier an op-ed, "Court Ruling Imperils Freedom of Worship, Sanctions Confiscations." Read it here . It was an ill-disguised continuation of denunciation of Hearn:  "Freedom of worship hangs in the balance, in the hands of a court tainted by personal bias."

On the next day, PFC published an op-ed in Columbia's The State newspaper. It included this zinger: "The deciding vote was cast by a justice who belongs to a parish, diocese and national denomination that stand to gain tremendously from the outcome." Three days later, DSC bought a full-page ad in The State to reprint the op-ed and to list some 100 people who had endorsed it, a whole lot of Baptists as it turned out (112 signatures by Sept. 25). See the announcement of this here . 

While PFC was busy fighting against rights for homosexuals and women, The [like-minded] Daily Caller stepped in to help. To be honest, I had never heard of The Daily Caller. I know about it now. See the Wikipedia article on it here . As it turned out, it was a right-wing "news" fountain founded by Fox News personality Tucker Carlson and Neil Patel. It was originally funded by Foster Freiss. He is the highly conservative donor to social and cultural campaigns probably best known for his remark on live TV. To newswoman Andrea Mitchell, he said: "And this contraceptive thing, my gosh, it's so---it's such---inexpensive, you know, back in my days, they used Bayer Aspirin for contraception. The gals put it between their knees and it wasn't that costly." For the first time in her life, Mitchell was rendered speechless (I happened to be watching). Tucker Carlson, who apparently runs The Daily Caller, is actually a cradle Episcopalian. He says he stays in the Church for the liturgy.

On September 19, The Daily Caller joined in the fray with this article . Two days later, DSC brought attention to the article and asked people to spread it on social media.

The next, day, September 22, Steve Skardon unmasked The Daily Caller: "Breakaways Courting Alt-right News Media in War against the Church." As it turns out, The Daily Caller is in the far-right fringe media with the likes of Breitbart News. Skardon also reported that DSC has apparently hired a PR firm to spread its message against TEC. Read Skardon's troubling and revealing article here . 

In sum, DSC is conducting a fierce campaign against Hearn. It seems to me this is meant to diminish respect for the state supreme court decision in an attempt to keep communicants with the breakaway diocese as the buildings return to TEC. 

LITIGATION

1. TEC/TECSC filed a "Return" with the SCSC on September 18, 2017. Read it here . This was a response to DSC's three petitions for rehearing of Sept. 1. It was in two large parts. The first dismissed DSC's arguments as a rehash. The second defended Hearn against the demand for recusal. It said church membership is not grounds for recusal.

2. The next day, September 19, TEC/TECSC filed with the SCSC a friend of the court brief: "Amici Curiae Brief of The Honorable (retired) William T. Howell and The Honorable (retired) H. Samuel Stilwell in Opposition to Respondents' Motion to Recuse." Here, two retired judges wrote that Hearn was within her rights to remain on the case and had broken no ethics rules. Along with the judges' paper were two addenda. One was "Affidavit of Rebecca Lovelace." This refuted the words of the Rev. Tripp Jeffords regarding Hearn's role in the local church of Conway. The second was "Affidavit of Expert Opinion of Dr. Gregory B. Adams." Adams was a University of SC law professor and expert on judicial ethics. He too testified that Hearn was perfectly within her rights and had broken no rules of ethics. See the amici brief here .

3. On September 25, DSC filed a reply to TEC/TECSC's "Return" of Sept. 18. Read it here . It was mostly a defense of "timeliness," that is, why DSC waited so long to raise the issue of recusal.

The Supreme Court of South Carolina now must decide whether to grant DSC's petitions for rehearing. We are awaiting a decision. If they deny the petitions, the case is over in state court. DSC then would have the choice of appealing to the U.S. Supreme Court but it is highly unlikely SCOTUS would take the appeal. 

MEDIATION

U.S. District Judge Joseph Anderson, the mediator, has called the two sides to a meeting on October 4, to set up the structure for the mediation process. The federal court has a rule book online. It requires the mediation to start within thirty days after the order of mediation. That would have put it at September 29. Obviously the court does not strictly adhere to the rule book. The mediation is supposed to go on no more than thirty days with another fourteen days if there is a long written agreement. Perhaps the mediation will end in mid to late November. If there is an agreement, it will be put in writing and signed by the two parties. If there is no agreement, the mediation ends and the two sides continue litigation in court (which goes on anyway during the mediation talks). 

The mediation is give and take. Both sides will have to give something to the other. No one side will wind up with everything. Now is the time for communicants to be communicating their thoughts of what is and is not negotiable to their officers. Once October 4 arrives, the two sides cannot discuss the talks. They are private and confidential. The next the public will hear is at the end, whether there is an agreement or not. If there is an agreement, it will be presented to the public as a fait accompli. Since all issues, state and federal, are on the table, the agreement conceivably could end all litigation once and for all. 

We are awaiting a response from the SCSC. It is important that a response appear either before or during the mediation so as to clarify the settlement in the state court. Traditionally, SCSC responds within a few weeks to petitions for rehearing.

For some reason(s) completely unknown to me, the DSC side has ignored all mention of the mediation. The DSC website and the related "orthodox" sites have yet to say a word about the mediation. The whole world knows there is about to be a mediation. Why one side wants to pretend it does not exist makes no sense to me.

What happens now?

As for the SCSC, it seems to me there is virtually no chance DSC will get its wish to reopen the case. What it is asking is radical in the extreme. I call it "The Nuclear Option." It would blow up the court and rattle the whole state government. It has never happened. I expect within the next few weeks SCSC will deny DSC requests for rehearing. It is unimaginable those five justices would want to touch that radioactive case ever again. And, asking a justice to throw out her decision and to recuse herself retroactively is, well, to be charitable, far-fetched.

The mediation is another story. The deal is entirely up to the lawyers and authorities of the two sides. No one else can know what is going on there. How about a day of prayer and fasting on October 3, the day before the mediation process begins? That would be a good idea. It would be ideal if the two sides could come together as brothers and sisters and make a reasonable agreement good for both sides and leave as friends. 

Let us not forget that, after all, the two sides claim to be Christian churches. When this is all over, both sides had better be able to say we behaved as the Christians we claimed to be. 

I sense that we are getting close to the end of this long and sad saga of the schism in South Carolina. I believe we are at the most critical moment in the history of the schism. However, exactly what the end will be remains a mystery at this point.