THE STATUS OF THE SCHISM,
NOVEMBER 26, 2017

Thanksgiving is over and life is settling down again. And so, we return to the schism in SC. Where do matters stand now in the ongoing legal war between the independent Diocese of South Carolina (DSC) and the Episcopal Church (TEC) and its diocese (TECSC)? And, what can we expect in the near future?

WHERE DO MATTERS STAND NOW?

---The South Carolina Supreme Court (SCSC) ruled on Aug. 2, and reaffirmed on Nov. 17, that 29 of the 36 parishes in question plus Camp St. Christopher remain under trust control of TEC and TECSC. 

---Mediation is still set to resume on December 4, 2017, having been in recess since the initial session of November 6-7.

---DSC has filed a new lawsuit against TEC/TECSC in the circuit court of Dorchester County. On Nov. 19, DSC submitted a "Complaint" against TEC/TECSC claiming payment under the "Betterments Statute" for "improvements" on the properties that the South Carolina Supreme Court (SCSC) awarded to TEC/TECSC in its August 2 decision that was reaffirmed in its Nov. 17 decision. In this, DSC gave de facto recognition of the property ownership but is demanding payment before surrendering the properties.

---DSC announced on Nov. 19 that it was preparing to appeal the SCSC decision to the U.S. Supreme Court (SCOTUS).

---The case of vonRosenberg v. Lawrence is on stay during mediation but is still active in the U.S. District Court in Charleston. Judge Richard Gergel originally set a schedule for a trial in March of 2018.

If anything, the litigation is more complicated now than ever.

Only the leaders of DSC know if the two new legal actions are meant to put pressure on TEC/TECSC in mediation or are intended for the long run. All things considered, I suspect the latter.

WHAT IS LIKELY TO HAPPEN NEXT?

(I am speaking for myself only as a non-lawyer with no official connection to either diocese.)

---Immediate attention must be given to the Complaint against TEC/TECSC that DSC filed in the circuit court on Nov. 19. 

     TEC/TECSC will certainly reply to DSC's new lawsuit. My guess is they will file a Motion for a dismissal of DSC's Complaint. As I see it, TEC and TECSC would have a strong argument for dismissal since DSC's Betterments claim was not in any way a part of the original lawsuit of Jan. 4, 2013 nor in any of its amendments. I do not see how DSC can retroactively insert new claims in a suit after it is closed.

     If Judge Diane Goodstein is assigned the case (circuit court of Dorchester Counrt has only two judges), I imagine that, if the case is not dismissed, TEC/TECSC will petition for a change of venue, or for Judge Goodstein to recuse herself from the case. The logical place for this case is the circuit court of Charleston County.

     Personally, I really do not see how DSC's Nov. 19 Complaint has any merit since it was never part of DSC's original suit that ran all the way from Jan. 4, 2013 to Nov. 17, 2017. DSC had almost five years to insert Betterments into the case. It did not. As with the issue of recusal, timeliness would have to be an important factor here.

---DSC has 90 days to file an appeal with SCOTUS. That would put the deadline at February 15, 2017. As I understand it, DSC could request an extension. That would postpone it another couple of months. Thus, DSC's threat of appeal to SCOTUS would hang over over the mediation and possibly over the federal trial even though it is highly unlikely SCOTUS would take the appeal.

HOW LIKELY IS A COMPROMISE SETTLEMENT IN MEDIATION?

Anything is possible, but at this point I doubt that there will be a compromise settlement. Here is my view:

---DSC has shown no interest whatsoever in mediation, let alone a compromise settlement.

     Federal Judge Gergel ordered the mediation on August 30. This was announced on Sept 1 by the TECSC. DSC refused even to mention mediation until Oct. 4.

     The two sides met briefly, on Nov. 6 and 7 then recessed until Dec. 4. This indicated a certain unwillingness to settle differences. Bear in mind DSC's petitions to SCSC for rehearing were still active at that time. 

     DSC sumbitted its Complaint to the circuit court on Nov. 19, just 2 days after SCSC's final rejection of their petitions. It strains credibility that the 34-page Complaint and the accompanying Summons could have been thrown together in 48 hours. They were obviously prepared well in advance. This suggests DSC was expecting to lose in SCSC, and instead of taking up issue of reparations in mediation, decided to launch a new lawsuit against TEC/TECSC. The issue of Betterments could have been raised privately in mediation. 

     DSC's announcement of appeal to SCOTUS adds to its disinterest in mediation as a way to settle differences.

THE HISTORY OF DSC AND COMPROMISE:

---DSC has a long history of rising animosity against the Episcopal Church and a refusal to compromise. The examples of this are too many to list here. I will just point out some of the most obvious:

     1. In 2011, the Disciplinary Board for Bishops examined a strong case against Bishop Lawrence. When DBB publicly announced the investigation, DSC leaders launched a furious backlash against the DBB refusing to cooperate in any and every way. They even hounded the DBB attorney Josephine Hicks off the case. The DBB finally decided to give Lawrence the benefit of the doubt. They refused to charge him with abandonment of the communion. Just six days before the announcement, Lawrence proclaimed that DSC had issued quit claim deeds to all parishes. This was flagrant disregard of the Dennis Canon, a law of the Episcopal Church. Thus, just as TEC gave Lawrence plenty of leeway, he confronted the Church with an offer it could not refuse. 

     2. On Dec. 14, 2011, a group of bishops from Province IV journeyed to Charleston to discuss with Lawrence his issuance of the deeds. The DSC leaders greeted them with a blistering tirade. Lawrence met them; absolutely nothing came of it.

     3. In the General Convention of 2012, GC considered a liturgy for the blessing of same sex unions. Upon SC's proposal, GC added "the Thurlow Amendment" holding that no one could be forced to accept the reform. Local option would apply. Even so, SC voted against the liturgy. 

     4. From August to October of 2012 there was a secret movement in DSC for secession from TEC while at the same time, Lawrence talked with Bishop Andrew Waldo and Presiding Bishop Jefferts Schori claiming he was seeking ways SC could stay in TEC. On Oct. 2, the DSC standing committee passed a secret resolution to make schism. The next day, Lawrence met Waldo and Jefferts Schori and did not tell them of DSC's plan. Lawrence then refused to meet with Jefferts Schori again. On Oct. 15, Jefferts Schori placed a restriction on Lawrence who still refused to divulge the secret plan. On Oct. 17, Lawrence announced DSC had "disaffiliated" from TEC. The Presiding Bishop tried hard to appease Lawrence as he seemed to work hard to take DSC out of TEC.

     5. Jefferts Schori tried to work with Lawrence for another seven weeks as he steadfastly refused to deal with TEC. Finally, she issued Lawrence a Renunciation and Release. Upon this, Lawrence could have gained reinstatement in TEC by 1-a letter to Jefferts Schori, or 2-an appeal to the House of Bishops. He refused both.

     6. In June of 2015, TEC/TECSC offered a compromise settlement with DSC: TEC/TECSC would recognize the local ownership of the parish properties if DSC would hand over the entity of the diocese, a swap of parishes for diocese. DSC rejected this right off.

Time and again the Episcopal Church tried to make peace with the unhappy diocesan leaders, tried to appease Bishop Lawrence. Nothing came of it.

In sum, the DSC leaders refused for many years to compromise with TEC, indeed even to maintain friendly relations. DSC displayed open and growing adversarial relationship with TEC at least from the Robinson affair of 2003 onward.

It is important at this point to recall the big picture. I see the DSC leaders as front line soldiers in a great culture war. They are not inclined to get along with, let alone compromise with the enemy, the Episcopal Church. This culture war is a backlash against the Great Democratic Revolution of the Episcopal Church which occurred from the 1950's to at least 2015. This was the time TEC adopted a strong social consciousness and devoted itself to righting the wrongs in a society of which it was an integral part. The Church devoted itself to human rights for African Americans, women, and homosexuals. A small ultra-conservative minority of the Church refused to accept the body of reforms and bolted the TEC on the heels of the last reforms, for homosexuals. With their African allies, they promoted the Anglican Realignment and created an alternative church, the Anglican Church in North America opposed to reforms for homosexuals but divided on the issue of women's ordination. It is now literally dividing on that issue. Nevertheless, all of the ultra-conservative secessionists still see TEC as the apostate enemy to be crushed or severely wounded in the name of "orthodoxy." 

The DSC soldiers in this culture war appear to be in it for the duration. They know they have lost the properties. I imagine their aim now is to obstruct the implementation of the turn over of the parishes and the diocese as long as possible and drag out any end just as long as they can. This is a rear guard action, or scorched earth. And, this could go on for  long time to come.

In sum, I think we should restrain our hopes and expectations for a peaceful and eminent end of the terrible war in the old Episcopal diocese of South Carolina. There is more destruction to come and I do not see what else the Episcopal Church side can do about it but persist with the litigation to the end. At this point it seems to me clear that this legal war will be settled only by the courts.