SMOKE AND MIRRORS

The Diocese of South Carolina's reaction to the supreme court decisions is nothing more than a lot of smoke and mirrors. The diocesan leaders are trying to create the illusion that the Episcopal Church has not regained the 29 parishes and Camp St. Christopher, or if they have regained them, DSC can defer any transfer indefinitely. The bottom line is the same: the parishes and Camp are "safe" for a very long time, perhaps forever. However, the DSC is also putting out another, contradictory, message: people in the 29 parishes should be preparing to vacate the buildings. This intentional confusion is encapsulated in the DSC's latest version of "Frequently Asked Questions" posted on their website. Find it here . 

Let us look at the FAQs and see what they tell us and what they do not tell us about the state of the DSC today. 

The first question is "What does the US Supreme Court denial mean?"

  

Answer: "Denial of our petitions is not a judgement on the merits of either case or their outcomes."

FACT:   Yes and no. SCOTUS denied DSC's petition without comment. In that sense it was not a judgment. However, by denying it, the South Carolina Supreme Court decision of August 2, 2017, was left as the law of the land. That is a form of judgment. The SCSC decision is final. It cannot be appealed, ignored, or altered (except for possible clerical errors which the SCSC must correct). The SCSC decision is now Res judicata.

Next, "Is the litigation over?"

  

Answer, No.

FACT: This is true, it is not over because there are two avenues of litigation active, one in circuit court where DSC is suing TEC for "betterments," and one in federal court where TEC/TECSC bishops are suing the DSC bishop for rights to the entity of the old diocese. As for the issue of the properties, it is over.

However, the FAQs interpretation of this is false.

"As the Episcopal Church stated in their own brief to the U.S. Supreme Court, the five South Carolina State Supreme Court opinions are 'fractured,' to the degree of being virtually unenforceable as written."

This statement is flatly wrong. Find the Episcopal Church brief to SCOTUS, May 7, 2018, here . On p. 8, the Church lawyers called the SCSC decision "fractured," but then went on to describe how the majority ruled on each issue. TEC/TECSC lawyers have never said the SCSC ruling was "unenforceable" and never would say that. The decision was "fractured" in the sense it dealt with different issues, not that it was indecisive.

"Executing them [SCSC opinions], as TEC has now asked the Dorchester Court to do, will require interpreting what they mean both individually and collectively."

FACT:  The SCSC "remitted" its decision to the circuit court of Dorchester County for enactment, not for interpretation. The majority decision was clearly stated by all five justices of SCSC: 29 parishes and the Camp remain under trust control of the Episcopal Church. This does not need to be "interpreted." It is clear.

"It will also require the answer to a number of very complicated questions created by those conflicting opinions and the legal rationale (or lack thereof) for each opinion."

FACT: This is a nonsense statement. The majority of the SCSC ruled clearly. There was no "conflict." The properties must be returned to control of the Episcopal Church.

"As one example, the deciding vote (Justice Beatty) said only parishes that 'acceded in writing to the Dennis Canon' created a trust. No parish acceded in writing to the Dennis Canon."

FACT: Find the SCSC decision of August 2, 2017 here . Four of the five justices found that the 29 parishes had acceded to the Dennis Canon. All five of the justices agreed on which ones of the parishes (29) were on the list for TEC and which (7) were outside of the trust. This was a unanimous decision. There was absolutely no confusion about the central point of the ruling. Toal herself listed the parishes in footnote 49 even though she refused to join the opinion of the majority. Therefore, the justices were very clear that 29 parishes had in fact acceded to the Dennis Canon while seven had not.

Accession to the Dennis Canon was the crux of the matter before the court. The decision of the court was overwhelming and clear. 

If DSC had objected to the court's finding on this key issue, it could have raised it in its petition for a rehearing (Sept. 1, 2017). The petition that it submitted said nothing about this. Instead, DSC's entire appeal dealt with Justice Kaye Hearn. DSC tried to remove her part of the decision and to remove her from participating in the case. This ploy turned into a disaster for DSC as it had the opposite effect of forcing the court into defensive posture to protect its fellow maligned colleague. The court rejected a rehearing.

At this point, any charge that DSC might make about the decision is just opinion and irrelevant to the status of the SCSC ruling or its enforcement. It does not have the right to alter the opinion. The circuit judge does not have the right to alter the opinion. His responsibility is to enforce the decision.

This strange new criticism of Chief Justice Donald Beatty in the FAQs is the most puzzling part of DSCs present strategy. The all-out campaign against Hearn backfired fatally. Why would the DSC lawyers think a new attack on another justice, who just happens to be the present chief justice, Beatty would turn out differently? The wording of the FAQ about Beatty is very close to calling him a liar. I cannot see how DSC thinks this will advance their cause. Perhaps someone else can explain this. Then again, perhaps there is no explanation and it is all just madly flailing about.

"Why Continue litigation? The current ruling is unjust."

FACT: This is a matter of opinion which, at this point does not matter and is irrelevant to the issue at hand. The SCSC opinion stands as the law no matter what anyone may think about it.

"Gospel Proclamation is central."

"It is a certainty that we will not return to the denomination that rejected our adherence to the faith once received even if we are forced from our spiritual homes and required to rebuild."

FACT: Aha. Here we are at the point of the FAQs buried on the second page: prepare to vacate.

That brings us to the logical explanation of DSC's smoke and mirrors about litigation. I suspect the DSC leaders know the reality of the SCSC decision and that, at best, all they can do is delay enactment. The delay serves two purposes:

1-give time for parish leaders to find meeting places beyond,

2-build up demonization of the Episcopal Church so that, when the time comes, parishioners will blame TEC for the "unjust" loss of the buildings and join in the exodus. If my suspicion is true, this is a cynical and cruel tactic in a strategy that has already gone off the rails.

Removing the smoke and mirrors, it is clear that the property issue has been settled.