Wednesday, August 29, 2018


Whom to believe? What to believe? The Diocese of South Carolina is telling its communicants, and the public, a lot these days. But how much of this is true? How much can people trust? That is the matter at hand now. How much confidence can the people of DSC place in what their leaders are telling them?

DSC has published a lengthy discourse of its view of the schism called "Frequently Asked Questions." Find it here . It is a propaganda piece loaded with untruths, half-truths, and misinterpretations. I will not address it now since that has been done so well by scepiscopalians. Find their thorough analysis of DSC's FAQs here .

The issue of credibility goes back a long way. Before the schism, the DSC leadership put forth some serious and dramatic assertions which apparently were unquestioningly absorbed by the majority of people in the diocese. It is natural for people to assume that what their leaders are telling them is true. We want to trust those in authority. We want to go along with the crowd. These were the main points the DSC leaders made before the break:

1---the diocese was sovereign and independent.

2---the diocese had the right, on its on, to withdraw from the Episcopal Church.

3---the Dennis Canon was not valid in South Carolina.

These were judged wrong by the courts. The South Carolina Supreme Court said that 29 of the 36 parishes had acceded to the Dennis Canon and did not have the power to revoke that. They also opined that the Episcopal Church in South Carolina was the heir of the pre-schism diocese. The U.S. Supreme Court refused to take the case. The main points the DSC leaders made before the schism were not true. They were wishful thinking.

Meanwhile, in order to differentiate DSC from TEC, the diocesan leaders carried on a propaganda crusade denouncing the "beliefs" of the Episcopal Church, even as recently as last spring when they conducted a teaching campaign in St. Michael's and St. Philip's against the "false gospel" of TEC. They would have people believe TEC no longer sees Jesus Christ as the Savior of the world, no longer respects the Bible, and possibly no longer believes in the Virgin Birth, and the Resurrection. Bishop Lawrence said on his recent Last Hurrah tour that TEC believed there were many avenues to salvation. All of this is wrong. In fact, TEC has not changed its "beliefs" or theology. It still uses the same prayer book, recites the same creeds, and conducts the same liturgies, in fact, the same ones DSC uses. What the DSC leaders did was to take some controversial remarks by some bishops, and take them out of context, and imply that these are the "beliefs" of the whole Episcopal Church. This is despicable and shameful. Yet, apparently many DSC faithful are assuming this propaganda to be fact because it is what their leaders are telling them and surely the beloved authorities would not tell falsehoods.

In addition to spilling out all sorts of misinformation, the DSC leaders have another problem of credibility in that they keep changing their reasons for the schism. So far they have given us three different explanations. Before the schism, Bishop Lawrence often talked about the diocesan differences with TEC as three: 1-theology, 2-polity, and 3-morality. It was the third he emphasized the most, particularly homosexuality. Then, immediately after the schism, Jim Lewis, Lawrence's assistant, published an essay insisting the break came from theology alone (It's God, not Gays). Now, on his recent tour of a few weeks ago, Lawrence said he left TEC because of transgender. He could not accept TEC's reforms of equality for and inclusion of transgendered people in the life of the church. If the DSC cannot get their story straight, perhaps they had no story to start with. A revolving door of explanations only diminishes the credibility of any story. What will be the explanation tomorrow?


As for the litigation, where do we stand now?

There are two avenues of legal actions.

1---in the circuit court, we are waiting on Judge Edgar Dickson to decide what he will do with the six petitions in front of him. He has received the wish "lists" from the two sets of lawyers. I expect he will follow TECSC's suggestion of a Special Master to carry out the property transfer and an accounting firm to conduct an accounting of DSC's assets since 2008. Dickson has been ordered by the SCSC to implement the SCSC decision of Aug. 2, 2017. He has no choice but to enforce the law.

2---in the federal court, Judge Richard Gergel has set the trial in the case of vonRosenberg v. Lawrence at March 1, 2019. Right now, the lawyers are doing their homework before the trial. Odds are that TEC/TECSC will prevail here too. I expect the court will agree that TECSC is the rightful heir of the pre-schism diocese, as the SCSC had opined.

I like football, although I was too hopeless at it ever to be on a school team. I've been a fan since my days at Blount Junior High School, in Pensacola. To use football imagery, we are in the Fourth Quarter of the game. The play has been very uneven. In the first half, DSC completely dominated the field, monopolized the football, and led at halftime 17-0. DSC lawyers went into the locker room at halftime riding high and fully confident of an easy victory. The first half covered January 4, 2013 to September 22, 2015. 

The Second Half started on September 23, 2015 (the SCSC hearing). It has proven to be the reverse of the First Half. TEC came roaring back, ran over their opponent up and down the field, and now leads 35-17. We are well into the Fourth Quarter and it is all but certain TEC will win, and by a big margin. The game is close to being over. The end is in sight and the outlines of the resolution are forming. Spectators are beginning to leave.


How is it possible that DSC could have been so controlling in the first half, but the reverse since halftime? What happened to DSC's momentum? I have been doing a lot of thinking about that lately. As a historian, I am always trying to understand how matters get to where they are. What are the factors to explain the collapse of DSC on the legal field? Here is what I think at this point. I offer this as a layman's opinion only. As everyone knows I am not a lawyer or legal expert.  

In my view, the DSC lawyers made several decisions that turned out to be very costly:

1---choosing the court of Judge Diane Goodstein. It is easy to see why Alan Runyan et al chose Goodstein. Runyan's fellow lawyer in his firm, Andrew Platte, had clerked for Goodstein. The DSC lawyers knew her well. Runyan was the awesome maestro of that trial. I was amazed at how he dominated the whole business. I could understand how he had been a spectacularly successful litigant squeezing millions of dollars from big corporations on asbestos. Poor Judge Goodstein did not seem to grasp the admittedly complex and complicated issues involved. She was even confused by the word "Episcopal." 

In retrospect, the biggest mistake Runyan et al made in that trial was the treatment of Walter Edgar. The DSC lawyers apparently did everything they could to limit and restrict his testimony. This would come back to haunt them big time. In a sense, Walter Edgar saved the Episcopal Church in South Carolina. I will return to this momentarily.

The time came for Judge Goodstein to render a judgment. I cannot confirm this by documents, but I strongly suspect that she followed Runyan's "Orders" of December 2014. Both sides submitted "Orders" to her. These were the lawyers' requests of judgment. My guess is she followed Runyan's "Orders" only too well. Her decision, of February 3, 2015, was everything DSC could have wanted and then some. It was entirely partial and lacked the usual judicial reasoning and explanation. It read like a lawyer's brief, which perhaps it was.

In my opinion, the DSC lawyers would have been wiser to choose another judge, conduct a fair and balanced trial, and get a well-reasoned and substantial judgment. This could very well have held up in the state supreme court. But, this was not what actually happened.

2---the second big mistake the DSC lawyers made was to reject the TEC/TECSC offer of a compromise settlement of June 2015. The Church offered to give the 36 parishes their independence and property in exchange for the entity of the pre-schism diocese. This would have ended all litigation, all differences between the two dioceses. DSC summarily rejected the offer.

At the time, and ever since, DSC has gone out of its way to try to justify its colossal error. They insisted that the offer was not legitimate, that there was nothing in writing and the national Episcopal Church did not support it. Their excuses were not valid. I have posted the documents showing that TEC/TECSC made a specific offer in writing and that the lawyer representing the national Episcopal Church verified the Church's part in the offer (see my post of August 17, "The Documents of the Episcopal Church's June 2015 Offer of Compromise Settlement"). DSC's excuses for not accepting the offer have been shown to be wrong. I am guessing the real reason for DSC's rejection was the belief that DSC would prevail in the state supreme court and would wind up winning all. If so, they could so no reason to give away half.

3---the mishandling of Justice Kaye Hearn.

The state supreme court hearing of September 23, 2015, was surprising to me, and I expect to many other people. I think it was for the DSC lawyers as well. Apparently, Runyan expected Chief Justice Jean Toal to lead the court in applying her All Saints decision of September 2009 to the whole diocese. That decision had declared the Dennis Canon to be invalid in regards to the case of All Saints parish, Pawleys Island. Runyan argued before the justices, that the Dennis Canon was invalid, in and of itself, in the state of South Carolina.

As it turned out, it was not the Dennis Canon that was the main issue in the hearing, it was the circuit court trial and decision. All five justices derided the conduct and outcome of the trial. They unanimously demolished Goodstein's decision. But, what bothered them more than the decision was the one-sided way in which the trial had been conducted; and what brought that out the most was the courtroom treatment of the esteemed historian and radio personality Walter Edgar. Toal was particularly steamed at this. Turned out she was a big fan of the universally beloved Edgar. In fact, Toal agreed with Runyan that the All Saints decision should be applied to the whole diocese, but she could not reach that because of the distractions raised by the trial and the decision. As we learned later, Toal was the only justice who wanted to enlarge All Saints. If Goodstein's decision had been narrowly focused on state property and corporate law, I suspect there would have been a good chance the SCSC would have upheld it. However, the decision was not narrow. It even declared TEC to be a congregational institution, and did so without any reasonable explanation. In the hearing, then, Toal, could not control the narrative and could not keep the court on track to adhere to All Saints. Her frustration was clearly evident. She raked Runyan over the coals in the hearing before she picked him up and spoon fed him her main points.

When the SCSC decision finally appeared, twenty-two months after the hearing, the majority agreed to overturn the most important parts of Goodstein's decision. Four of the five justices said that the Dennis Canon had gone into effect in SC and three of the five agreed the parishes did not have the right to revoke their accessions. Only Toal disagreed. The court ordered 29 parishes and Camp St. Christopher back to TEC control. 

All of this is lead-up to a monumental mistake of the DSC lawyers' own making, the all-out attack on Justice Kaye Hearn. On September 1, 2017, Runyan petitioned the SCSC for a rehearing. He also asked that Hearn's part of the decision be removed and that Hearn herself be removed from future deliberations on the case. The grounds for the attack was conflict of interest. Hearn was a member of a local church in the Episcopal Church diocese. From September 1 to November 17, DSC and its allies in the state conducted an extensive public campaign to discredit Justice Hearn. This was their approach to overturning the decision and replacing it with one favoring DSC. The campaign was personal and fierce. Hearn's defenders saw it as an attempt at character assassination. 

DSC had not made Hearn an issue before this. The DSC lawyers had not raised Hearn's supposed conflict of interest before or during the September 23, 2015, hearing. They had not mentioned it in the twenty-two months after  the hearing. Suddenly, on September 1, they declare it the crucial issue. Apparently, this did not stand well with the court.

The attack on Hearn backfired spectacularly. The other four justices saw the attack on Hearn as an attack on all of them. They rushed to unify in defense of their colleague under assault. They were defending themselves too. No one can document this, but I suspect this attack on Hearn may well have driven the other justices to keep the case closed. On November 17, 2017, the SCSC denied DSC's request for a rehearing and rejected DSC calls for Hearn's opinion to be removed and for Hearn to be replaced in future actions on the case. Even the justices most sympathetic to DSC, Toal and Kittredge, took the unusual step of chastising the DSC lawyers for their treatment of Hearn. The SCSC completely rejected DSC's appeal. Immediately thereafter, the SCSC sent an order to remit to the circuit court, directing the court to implement the SCSC August 2, 2017 decision. 

The DSC lawyers must have realized their terrible mistake. When they appealed to the U.S. Supreme Court, in February of 2018, they argued overwhelmingly on the grounds of neutral principles, something they perhaps should have done in heir petition for rehearing in the SCSC. SCOTUS would have none of it. They swept it aside as unimportant. They did not even elevate the SC case into the top ten of the day. I will always wonder what Hearn's treatment had to do with that.

4---the failure of mediation.

Right after the SCSC decision of August 2, 2017, federal judge Gergel ordered a mediation of the two sides with all issues on the table. If the opponents could agree on terms, all matters could be resolved and all litigation would end. 

The three sessions of the mediation, from October 2017 to January of 2018, remain secret. At this point we cannot know what the two sides discussed. However, we do have a public document showing that TEC requested that DSC agree to a protocol whereby Bp. Adams would be allowed to communicate with the 29 parishes. Apparently, DSC flatly refused this.

Mediation ended in January although it is still technically open and could possibly resume. However, obviously nothing came of the mediation or we wold know about it. Thus, DSC had another chance to work out a litigation-ending settlement. So far, absolutely nothing has come of it and I see no reason to think it ever will.


To summarize, in my view, DSC made two fatal mistakes that left them in the weak position where they are now, trailing badly in the Fourth Quarter. The first was to reject the TEC offer of a compromise settlement in June of 2015. TEC made an offer. DSC rejected the offer. Whatever reasons or excuses anyone wants to make, the facts are clear and bare. If DSC had taken this offer, the 29 parishes in question would now be independent and in sole possession of their properties. 

The second fatal mistake of DSC was the attack on Justice Kaye Hearn. If DSC had taken another approach, say arguing on neutral principles, it is entirely possible the court would have listened to the plea. By making it personal against one of the justices, DSC attacked the integrity of the whole court. It certainly forced the court to rally around Hearn. It is entirely possible this ruined any chance of DSC to get a rehearing, and perhaps an appearance in SCOTUS. It sealed the fate of the 29 parishes and the Camp.

But, I think in a way all this hinges on Walter Edgar. If he had been treated generously and respectfully and allowed to testify freely in the circuit court, the state supreme court would have seen the trial, and possibly the decision, differently. It was Edgar's treatment that personified to the supreme court justices everything that was wrong in the circuit court trial and decision. That is why I think Walter Edgar unwittingly saved the Episcopal Church in South Carolina.

The takeaway from all this-----29 parishes are going back to TEC. This means the clergy and the 13,000 communicants will have to decide whether to stay with the buildings and return to TEC or leave the buildings and follow the DSC leadership. In mulling over that decision, the clergy and laity of DSC would be wise to contemplate the credibility of their leadership. They should ask themselves whether their leaders have made wise decisions and whether they have told the whole truth. They should ask themselves too, where is God in all of this? Could God be speaking to us through the events? The schism failed to remove the parishes and their properties from the Episcopal Church. What the clergy and 13,000 of the 29 parishes do is up to them. It is up to the rest of us to lift them up in our prayers and reach out with understanding and support. The 13,000 have the choice of returning to TEC or staying with the DSC leadership.