PERSON OF THE YEAR, 2019

As the year 2019 approaches an end, I have been thinking about the most important people in the history of the schism in this year. I came up with an impressive list, but there was one name that stood out far and away as the most important. Therefore, this person must be singled out for his transformative contribution to the settlement of the legal war in the schism.

Under the power invested in me by the Internet, I proclaim and declare the Person of the Year for 2019, in the history of the schism in South Carolina, to be:

Judge Richard Mark Gergel

  

I must admit to start with that I am partial to Judge Gergel because he is not just a great jurist. He is a fine historian. If you have not read his recent book, Unexampled Courage, The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring, you should. It will turn your stomach, break your heart, but ultimately leave you with admiration for those in authority who resolved against the odds to do the right thing. Judge Gergel is following in their footsteps and we are the beneficiaries.

As we learned this year, Judge Gergel is the epitome of learning, wisdom, clarity, and efficiency. Are not these basic qualities we all want in our judicial system? He did his best to end the tragedy of the legal war stemming from the schism. For that alone we should all be grateful.

The breakaways are at a loss to blame his decisions, that went against them, on some some perceived prejudice, as they did with Justice Kaye Hearn of the state supreme court. In that case, they claimed her opinion must be ruled invalid because of her membership in a local Episcopal church. Judge Gergel, as they say, has no dog in this hunt. Concerning the Episcopal Church schism in South Carolina, he is as impartial as a judge could be.

Judge Gergel's magnum opus of 2019 was his landmark decision "Order and Opinion," issued on September 19. This is by far the greatest court judgment in the seven-plus years of the schism. It is a model of erudition, wisdom, comprehensiveness, and judicial rigor. Moreover, it is all written in plain English that anyone can understand. The judge definitely has a gift of writing well. This is refreshing in a world where so much legal writing is in impenetrable legalese.

Judge Gergel really settles the whole war of litigation in this 73-page masterpiece. We must not underestimate the importance of this work. This is the first federal court ruling on the relationship between the Episcopal Church and its dioceses. It is almost certain to stand up under appeal. If so, it will become the law of the land on the issue of Church-diocesan connections. It is a great landmark in American jurisprudence.

Judge Gergel ruled that the Episcopal Church is an hierarchical institution, and therefore civil courts must defer to the institution to settle its internal disputes. This establishes once and for all that the Episcopal Church is hierarchical in the eyes of the law. This is greatest achievement of the Order.

Judge Gergel went on to make several other crucial decisions in this paper. He recognized the authority and validity of the South Carolina Supreme Court decision of August 2, 2017, primarily the point that the Episcopal Church diocese was the one and only heir of the historic diocese. He also recognized the majority decisions of the SCSC decision, particularly that the Episcopal Church is the owner of the parishes in question. Moreover, he emphasized the Church diocese was the owner of the trademarks both nationally and locally. 

At the end of the September 19 Order, Judge Gergel issued a permanent injunction banning the disassociated entity from using the names and emblems of the historic diocese.

Probably anticipating an appeal, Judge Gergel cleverly weaved arguments in the paper to make it virtually appeal-proof. He brought up Fourth Circuit decisions an astounding twenty times in his Order. Thus, he has already laid out for the Fourth Circuit justices what their positions should be in case of an appeal. Sure enough, the disassociated entity's lawyers have appealed Gergel's Order to the Fourth Circuit Court of Appeals. In my view there is almost no chance the Fourth will overturn Judge Gergel's masterpiece of jurisprudence.

For whatever reasons, the disassociated entity immediately began to comply with Judge Gergel's injunction against them, at least to some degree. Also, their lawyers did not file for a stay of the Order, at least not right away.

Then, things began to change. The disassociated organization, now calling itself the Anglican Diocese of South Carolina, continued claiming to be the historic diocese or at least sharing the identity of the historic diocese in direct violation of Gergel's Order. Then, the Episcopal Diocese of South Carolina's lawyers had enough. On November 11, they filed a complaint with Judge Gergel listing the numerous ways ADSC remained in violation of the injunction. The main argument was the point about historical identity. 

After this, the ADSC lawyers decided, more than a month after the fact, to file for a stay with Judge Gergel. The judge would have none of it. A few days after the EDSC lawyers filed their last complaint against ADSC, Judge Gergel issued a new "Order and Opinion." Scarcely veiling his irritation with ADSC, Judge Gergel issued a 20-page judgment on December 18 spelling out in no uncertain terms orders to ADSC to obey the law. He did allow the ADSC group to keep their chosen name, but in every other instance he ordered them to stop using the names, emblems, and most of all historical identity of the true Episcopal diocese. It was the historian in Gergel that came out the clearest in this paper. He seemed truly offended that the breakaways had not obeyed his direction on historical identity. In the new paper, he made it crystal clear that the breakaways could claim no existence in any way before October of 2012. 

In the 18 December order, Judge Gergel also denied ADSC's motion for a stay pending appeal. He pointed out that one rationale for a stay was the likelihood the appeal would succeed. With this he signaled the un-likelihood the appeal would succeed.

ADSC began removing more of the website violations of the injunction.

What makes Judge Gergel stand out even more is the contrast to the state court judges in the year. Judge Edgar Dickson, of the first circuit state court was assigned the Remittitur of the South Carolina Supreme Court decision of August 2, 2017. He has had the case before him for two years and has done virtually nothing to implement the SCSC decision. He spent all of this year in back and forth marking time and doing almost nothing toward this assignment. He held two hearings that accomplished nothing. In apparent desperation to be rid of the case, he called for mediation which everyone else knew would be doomed. Sure enough, it was. He is now calling for proposed orders on ADSC's motion for clarification of jurisdiction. In this, ADSC is asking Judge Dickson to discard the SCSC decision and declare on his own that the 29 parishes own their properties without trust control. The fact that he would even be entertaining a motion to set aside the SCSC decision suggests his reluctance to recognize the majority orders in this SCSC decision. Where Judge Dickson is going with all of this is anyone's guess. So, we have Judge Gergel, the model of efficiency, and Judge Dickson, who, well, seems lost at sea, at least in this year. What a contrast. 

After more than seven years of legal war, everyone is exhausted and longing for closure and peace. It is a scandal this disagreement had to go to court at all. However, at along last, we have a judge who is masterfully guiding this disaster to a conclusion. Too bad it took so long to get him on the stage. Nevertheless, we should all be grateful for the work of a great jurist in Charleston. U.S. District Judge Richard Gergel is, hands down, our person of the year. 

VIDEO OF THE DAY

Sometimes it may seem as if the world around us has gone mad. This is particularly true in the craziness of our current political climate and the Alice in Wonderland world of President Trump. We can laugh or cry at this state of affairs. Occasionally, it is better just to laugh at the absurdity. 

A few months ago, in a Tucson city council meeting, the wackiness got to one observer who broke out into hysterical laughter and could not stop laughing. He is called "the green shirt guy." The video of this is still running viral on the Internet.

See the video here .

Penguin brand green polo shirts sold out immediately on the Internet. 

So, maybe the green shirt guy has found our best defense to the crazy chaos of our day, laughter. If it protects us from falling victims to the insanity around us, I say let's have more of it.

HAPPY BIRTHDAY TO MY DAUGHTERS

                    December 28, 2019. Jacksonville, Alabama.



Happy birthday to my daughters, Margaret Mary and Elizabeth Anne. You were born on this day (I will not say how many years ago). The doctors said you were identical twins. It was the greatest day of my life. 

Right after the birth, I went home and planted these twin magnolia trees in our front yard. They were two feet tall when I put them in the ground in the sprinkling rain on the afternoon of the 28th of December years ago. Although they are separate trees, they have grown up together. These magnolias have flourished and are now grand and magnificent trees. As you, they are wonderful and beautiful.   

LEGAL NEWS --- 27 DECEMBER 2019

There is news to report on the ongoing litigation. On 23 December, the Anglican Diocese of South Carolina submitted its proposed order to Judge Edgar Dickson as per his instructions in the hearing last month when he asked the two sides to submit proposed orders on ADSC's Motion for Clarification of Jurisdiction. The paper is entitled "Order Granting Motion for Clarification." 

Unfortunately, I cannot attach a file to my blog space on Blogspot. I can put in an image or a link, but not a file. Since this paper is 25 pages long, the best I can do is direct you to the court website that has the file:

---www.sccourts.com/casesearch/

---Dorchester

---Accept

---Case # 2013CP1800013

---Search

---[click on the first "Case Number"]

---Actions

---[Documents on far right, by date.]

In their submission of 23 December, the ADSC lawyers are asking Judge Dickson to set aside the South Carolina Supreme Court decision of 2 August 2017 and declare that the parishes did not accede to the Dennis Canon and therefore own their own property outright.

Let us start by going over the SCSC decisions on the last (p. 77) page:

1) with regard to the eight church organizations which did not accede to the Dennis Canon, Chief Justice Beatty, Justice Kittredge and I [Toal] would hold that title remains in the eight plaintiff church organizations

2) with regard to the twenty-eight church organizations which acceded to the Dennis Canon, a majority consisting of Chief Justice Beatty, Justice Hearn, and Acting Justice Pleicones would hold that a trust in favor of the national church is imposed on the property and therefore, title is in the national church;

3) with regard to Camp St. Christopher, Chief Justice Beatty, Justice Hearn, and Acting Justice Pleicones would hold title is in the trustee corporation for the benefit of the associated diocese...

These are majority decisions written in plain English. The key phrase in all of this is "the twenty-eight church organizations which acceded to the Dennis Canon." That is a simple and entirely clear declaration of the state Supreme Court. There is no conditionality or ambiguity in that statement. It is a direct order from the majority of the state supreme court. 

The SCSC decision of 2 August 2017 is now the law of the land. The SCSC denied a rehearing, and the U.S. Supreme Court denied cert. On  Nov. 19, 2017, the SCSC sent an official "Remittitur" of its decision to the circuit court of the First Circuit, the court of origin. A Remit order is a direction to a lower court to implement the majority decisions.

As I read it, the ADSC proposed Order says the lower court has the right to decide itself on a Supreme Court decision by discerning the "intent" of the justices. "The Court finds that it has the jurisdiction to take whatever steps are necessary to determine and act on what is 'consistent' with the intention of the Supreme Court, whether explicit or implicit." "The judgment of a court is construed like any other written instrument, that being to determine the intent" (p. 7)  "a set of five opinions from which this Court must now discern the Supreme Court's intent."

I am not a lawyer, but I must say I have hear of any such claim. A majority opinion of a supreme court is final and binding. It is law. No one has to discern "intent" in how the justices arrived at their opinion. If we took that route, no supreme court decision could ever be applied. They would all be challenged in perpetuity. And, how is anyone to find "intent" anyway? Such could not be clearly discerned. Besides, this is all irrelevant to the law. The supreme court decision is final. It does not matter one whit how the justices arrived at their majority conclusions. Intent is a moot point. "Grasping at straws" comes to mind. 

I suppose what the ADSC lawyers are trying to get to is that the justices "intended" to hold accession to the Dennis Canon as the measure for ownership. Therefore, the circuit court should now revisit the Dennis Canon:  "In order to  make the determination of which parishes expressly acceded to the Dennis Canon, this Court will thus have to look at the evidence presented on this issue to the trial court" (p. 21) The court will find no accession: "Based on this Court's review of the record, there has been no 'accession' to the Dennis Canon such that the Plaintiffs' agreed that their property should be held in trust for the benefit of TEC." In other words, ADSC wants the circuit court to declare that the parish properties do not belong to the Episcopal Church and its diocese. This would be a direct contradiction of the SCSC order # 2 on p. 77 of its 2 August 2017 decision. 

Does a circuit court have the right to overturn a final supreme court decision it has received on Remittitur? Surely not. This would undo the whole structure of jurisprudence on which the country operates. The supreme court has the last word, not the circuit court. I cannot imagine that Judge Dickson would overthrow a state supreme court decision, particularly on something amorphous as "intent." Even if he did, the South Carolina Court of Appeals would uphold the supreme court decision. It is unimaginable the appeals court would dare to discard a state supreme court decision. It is not going to happen. 

Judge Dickson has one task, to implement the SCSC decision. He has already recognized the validity of the decision by enacting order # 1 on p. 77 (7 parishes own their own properties). There is no good reason why he should not proceed to do his job and implement orders # 2 and 3 now. He has had this matter on his desk for two years. How much longer does he need to figure out the plain English in the SCSC decision? Justice delayed is justice denied.

The Episcopal side should be presenting its proposed order to Judge Dickson any moment now. I will relate the news about it as soon as I can. It does not take much imagination to know what they will say. 

HAPPY CHRISTMAS

My best wishes to you, dear blog reader on this Christmas Day of 2019. There are hundreds of people who read this blog regularly. Some of you I know, some I do not know. I appreciate each and every one of you. Each of you is important to me. I would not be here otherwise. You are here to find information on the schism and perhaps get a little opinion. I try my best to give you both. This has been my pleasure over the past six years on this blog.

At this moment, even on this festive day, we must realize that we are in two crises, one concerning the church and one concerning the nation. We are in a great culture war that has divided the faithful and the citizens into opposing forces. We have turned against each other. Make no mistake about it, this is war. By Christmas of next year, we will see dramatic effects in both of these aspects of the culture war. We are in for a wild ride. All along the way I will be here, as I am able, to relay information to you as quickly as I can and to give my take on matters, local and national. This is my gift to you. Your encouragement is your gift to me. We are all in this together.

I offer a special "thank you" to the several lawyers, not involved in the church case, who generously and thoughtfully send me information on the ongoing litigation. This helps me, a non-lawyer, a great deal. I would be lost without them.

Along the way, let us remember what is really important in life, love of God and love of neighbor. This should always be our guiding star of the East.

LEGAL NEWS, 24 DECEMBER 2019

There is news to report today concerning the ongoing litigation between the Episcopal Church and its diocese and the disassociated diocese (ADSC).

On yesterday, 23 December, the breakaways filed "Defendants-Appellants' Motion to Stay Injunction and to Stay Case" with the United States Court of Appeals, for the Fourth Circuit, in Richmond. In this 33-page paper, the ADSC lawyers asked the Court "to (1) stay this case pending the United States Supreme Court's decision in U.S. Patent & Trademark Office v. Booking.com B.V., No. 19-46 (U.S.), which the Supreme Court will decide this Term, and (2) stay this injunction pending appeal" (p.1).  In other words, the ADSC is asking the Appeals Court to stay (suspend) the Injunction Judge Gergel issued on 19 September (and reaffirmed on 18 December) against the ADSC, and to stay the whole case in the appeals court until the U.S. Supreme Court rules on the "Booking.com" case, in 2020.

Recall that Judge Gergel denied ADSC's motion for a stay of his injunction, on 18 December.

In this paper, the ADSC lawyers return to using "Diocese of South Carolina," a term that was explicitly forbidden them by Judge Gergel. They also returned to their claim to history, also blocked by Gergel:  "In 2012, the Diocese of South Carolina (which covered the eastern, or lower, part of the State) eliminated its corporate allegiance to TEC by withdrawing from that unincorporated association." Thus, in this paper, it seems to me the disassociated organization is in violation of Judge Gergel's Injunction of 19 September. 

I am not a lawyer, but the arguments in this paper seem weak to me. In the first place, the federal court has established that "The Episcopal Church" and its variations are federally protected trademarks. ADSC argues that "episcopal" and "church" are generic terms and adding "the" should not matter. Their argument in favor of this is not at all convincing. Besides, I did not see here any strong case that the order of the district court had any flaws in it. It must be shown to be in error for the appeals court to overturn it. As for the case now before the Supreme Court, I do not see any similarity to the church case decided by the U.S. District Court. The "Booking.com" case involved whether an online company can add the term ".com" to a generic word and trademark this. The U.S. Patent Office said it could not. The Fourth U.S. Court of Appeals ruled that it could. That is the issue now before SCOTUS. I do not see any relation to the church case. For more information on the "Booking.com" case, see here .

The Episcopal Church side has until 30 December to reply to yesterday's motion.

It seems to me ADSC's motion of yesterday has no substance either to stay Gergel's orders to to stay the case pending SCOTUS's decision on "bookings.com". I expect the Fourth  Circuit Court of Appeals to dismiss this right away. It appears to me this is another example of ADSC's strategy of deny and delay.

STILL AT IT,
with update

11:00 a.m.     On 18 December, U.S. District Judge Richard Gergel, in Charleston, issued a second order against the Anglican Diocese of South Carolina banning them from infringing on the rights of the Episcopal Diocese of South Carolina. In no uncertain terms, he reminded the breakaways that he had issued an Injunction (19 September 2019) against them to stop them from using the names and emblems of the identity of the historic diocese: e.g. Diocese of South Carolina, the Episcopal Diocese of South Carolina. 

A noteworthy historian himself, the judge seemed most rankled that the breakaways were still trying to assume, illegally, the historical identity of the pre-schism diocese. In many cases, the judge declared in his Dec. 18 order, the "disassociated diocese" was attempting "to co-opt the history and goodwill of TEC and TECSC's marks." "Yet, the Defendants [ADSC] position ignores the clear Order of this Court and only serves to demonstrate that the Defendants continue to disregard this Court's Order by misappropriating the goodwill associated with the enjoined marks." "The Court has found it indisputable the TECSC is the successor of the Historic Diocese." "Defendants may not subvert this Court's clear Order, as detailed above, by continuing to co-opt the goodwill of the exact marks they are enjoined from using." The judge went on that by co-opting the goodwill, the defendants were causing harm to the Episcopal diocese. In his conclusion, Gergel made it very clear that the Anglican diocese and all of its officers are permanently enjoined from using the identity of the historic diocese, that is, diocesan history before 2012.

This morning, I made a cursory scan of the Anglican Diocese's website and found numerous examples where apparently the breakaways continue to assume the identity of the historic diocese. Here are some outstanding examples:

--- "Latest News." Find it @ adosc>Legal News>Latest News. This gives a long list of comments and documents apparently in violation of the court orders banning the new diocese from assuming the historic identity of the Episcopal diocese, for instance, the "FAQs."

--- "The Real Story Behind Our Split With The Episcopal Church" by the Rev. Jim Lewis:  "much has been made about the Diocese of South Carolina's separation from the Episcopal Church..."  "resolutions that simultaneously disaffiliated us from TEC."

--- "Diocese Releases Statement Regarding Disassociation from the Episcopal Church" by the Rev. Kendall Harmon. This includes the diocesan seal. "The Diocese of South Carolina is no longer part of TEC."

--- Resources>Parochial Report. Parochial report of 2013, "Diocese of South Carolina."

--- Resources>Pledge Report. Pledge Report, 2017-2018, "The Protestant Episcopal Church in the Diocese of South Carolina, 2017-2018 Pledge Report."

These are just some of the examples I found in a quick search. The "FAQs" under the "Legal News" is replete with references to the historic diocese. There are too many to list here.

I am sure the Episcopal Church lawyers and their clerks can compile a long and detailed list of places where the Anglican diocese is still in violation of Judge Gergel's two very clear orders. I am equally sure you readers can find examples.  

If I were an officer in the breakaway diocese, I would not want to have to appear before Judge Gergel a third time on this issue. He stated in the second order (18 Dec.) that infractions of the Sept. 19 injunction were causing harm to the Episcopal diocese. The next step is for the Episcopal diocese to go back to court and ask for monetary compensation for violations of the court orders. Maybe a thousand dollars a day for each infraction would make a statement to the defendants.

A word of advice to the Anglican diocesan officers:  The federal court has ruled very clearly that the Episcopal diocese is the one and only legal heir of the historic diocese. Judge Gergel ruled explicitly that your association was formed in October of 2012 when you chose to leave the Episcopal Diocese of South Carolina. You have no identity before then.  The organization you are calling yourselves now, "Anglican Diocese of South Carolina," came into existence in 2012. The federal court has ruled this emphatically. If I were an officer in ADSC, I would not tempt Judge Gergel to rule a third time on this issue.

______________________

A note for historical clarification.

 

The schism occurred at 12:00 p.m., on October 15, 2012. That is when the presiding bishop called Bishop Lawrence and placed a restriction on him pending action on the certification of abandonment passed by the Disciplinary Board for Bishops. The leaders of the diocese agreed among themselves that the diocese disaffiliated from the Episcopal Church at that time (noon, Oct. 15, 2012). Shortly thereafter, 50 local churches agreed to go along with the separation. A convention met on Nov. 17, 2012 to confirm the break.

From Oct. 15, 2012, to September 19, 2019, the disassociated group continued using the historic names and emblems of the diocese. On Sept. 19, 2019, the federal court ruled that the disassociated organization had no legal claim to the historic diocese. The judge issued a permanent injunction forbidding the disassociated diocese from pretending to be past, present, future the Episcopal diocese.

The federal court ruled that the Episcopal diocese continued on unbroken in 2012 and thereafter, and remained entitled to the names and emblems of the historic diocese. The breakaway group then adopted the name "Anglican Diocese of South Carolina."

The Anglican Diocese of South Carolina came into existence at the moment of the schism, on Oct. 15, 2012. It did not legally "disaffiliate" or "disassociate" from the Episcopal Church. It had no right to the history of the Episcopal diocese even though its leaders and communicants used to be members of the Episcopal diocese. The federal court ruled that the Anglicans' self-proclamation of disaffiliation with the Episcopal Church was not legally recognizable. After Oct. 15, 2012, the ADSC could  not claim to be the Episcopal diocese either in history or at present or in the future. Therefore, all actions after noon of Oct. 15, 2012, would be as the new entity now known as the Anglican Diocese of South Carolina. The federal court injunction of Sept. 19 specifically bars the separate organization from using the names and emblems of the historic diocese.

Since Oct. 15, 2012, there have been two distinct entities. The Episcopal diocese continued, and continues, uninterrupted. It remained part of the Episcopal Church. The Anglican diocese was created on Oct. 15, 2012. It had, and still has, no claim in any way to the history, rights, names, and emblems of the Episcopal Diocese of South Carolina. The federal court has declared this very clearly. The Anglicans' lawyers have appealed Judge Gergel's decision but there is virtually no chance the Court of Appeals will overturn his orders, and the judge came close to saying this in his Dec. 18 judgment.

____________________________

UPDATE, 23 December, 3:30 p.m. The Anglican Diocese of South Carolina removed its website page "News & Events > Legal News" today. This is where I found most, but not all, of the apparent violations of the court orders on the ADSC website. 

PELOSI VERSUS MCCONNELL

Just when we thought we had put impeachment behind us and could wait on the trial in the Senate, the story took a strange twist. The Speaker of the House, Nancy Pelosi, has refused to deliver to the Senate the articles of impeachment passed by the House of Representatives on 18 December to the Senate. Under the terms of the Constitution, the House impeaches by majority vote in order to put the president on trial in the Senate. There the senators sit as the jury but must vote by two-thirds (67 of the 100) to remove the president from office. In order to have the trial, however, the Senate has to receive the articles of impeachment from the House. This is what Pelosi is holding up. Refusal to deliver the articles did not happen in the two earlier cases (A Johnson, Clinton). 

This situation has set up a clash of the titans in Washington. It is Nancy Pelosi, the Democratic head of the House, against Mitch McConnell, the Republican head of the Senate. They are now at it and neither one of these political giants shows any intention of backing down an inch. It will be fascinating to watch who wins this prize fight. Who do you think will win?

Both of these characters are master politicians who long ago perfected the hardball maneuverings of Washington. They have much in common in that regard. 

Nancy Pelosi has handled the impeachment matter brilliantly. She is the greatest speaker of the House since Sam Rayburn. She has the intelligence of a chess master and the patience to go with it. She exudes "don't mess with me" authority even to reporters. Like the school marm who has had it with the schoolyard bully, she appeared at just the right time to tweak him by the ear and give him a good thrashing. 

Mitch McConnell has just as brilliantly controlled the Senate in favor of the Trump Republican party. Under Obama, he blocked the Democrats' chances of getting a seat on the Supreme Court and to place many new judges on the benches. Under Trump, he has turned the Senate into the power enter for the President on Capitol hill. He got through two Supreme Court judges and many young, conservative federal judges some with little or no courtroom experience. He has on his desk now hundreds of bills passed by the House of Representatives that he refuses to advance for consideration in the Senate. For this, he is fond of calling himself "the Grim Reaper." 

As clever as he is, I think McConnell made a serious tactical mistake in announcing before the House vote on impeachment that he would not allow a fair trial in the Senate, in direct violation of the terms of the Constitution. He said very publicly he would coordinate his effort with the President so that the trial would end quickly with an acquittal. He would have been smarter to wait to say such after the vote. No doubt McConnell's unwise attempt to preempt Pelosi's moment of glory raised the school marm's hackles as nothing else could. So, a few minutes after the House voted the articles, Pelosi went on television to smack down her upstart rival. No one saw this coming.

Pelosi said she would hold the articles until McConnell spelled out what procedures he would choose for the trial (the Constitution does not give details for a trial). The Constitution does not give a time period for the delivery of the articles to the Senate. Theoretically Pelosi could hold the articles for a long time. It is possible we will go through the election in November of 2020 with this situation at a stalemate. Surely the Republicans would not want that. Having two articles of impeachment hanging over Trump's head would not help his chances of getting reelected. An acquittal in a trial in the Senate would help his chances. So, what we are watching now is a high stakes political chess match.

Brilliant and aggressive Pelosi is matched up against brilliant and stubborn McConnell. Right now they are playing a game of chicken. They already know each other very well. At this moment Pelosi holds the stronger position because she has control over the articles that are dangerous to President Trump and the Republicans. She is refusing to relinquish her control until she gets what she wants, a fair trial in the Senate. On the other hand, McConnell has the majority in the Senate and the Republicans have shown no inclination to break ranks. He can set the terms of the trial. He can count on a certain acquittal. What remains to be seen is what McConnell is willing to do in order to get his hands on the articles. That is the question of the day.

A big lesson we have all learned recently is that no one should underestimate Nancy Pelosi. She gave a thrashing to the most powerful man in the world. Before this is over, I expect she will get the best of McConnell too.

JUDGE GERGEL ISSUES ORDER

ON ENFORCEMENT AND ON STAY

On yesterday, 18 December 2019, Judge Richard Gergel of the United States District Court, in Charleston, issued a 20-page "Order and Opinion" on two motions, the Episcopal Diocese's Motion to Enforce the Injunction and the Anglican Diocese's Motion to Stay Pending Appeal." Read the Episcopal diocese's news release about this here .

On the second, the judge denied the motion for stay. This means Judge Gergel's orders on enforcement will remain in effect throughout the time ADSC appeals his decision to the U.S. Court of Appeals.

On the first, the judge allowed the disassociated entity to continue using the name "Anglican Diocese of South Carolina."

He ordered the ADSC to stop using:

---"founded in 1785"

---14th bishop

---XIV bishop

---229th Diocesan Convention

In addition, the judge ordered the ADSC:

---to stop redirecting website domains that are similar to EDSC's.

---to stop posting or publishing any journal of any diocesan convention prior to October of 2012.

---to stop posting or publishing any journal that contains the marks and/or names belonging to the Episcopal diocese.

In sum, except for allowing the disassociated organization to use their chosen name, Anglian Diocese of South Carolina, Judge Gergel has ruled entirely on the side of the Episcopal Church. It is important to point out that Gergel did not levy any fines on ADSC for their failure to comply with his original order. He wrote:  "Since Plaintiffs have not requested sanctions or identified any monetary losses, the Court will enforce its finding of civil contempt at this time through an order enjoining the noncompliant acts described above." The term "at this time" could signal a change in the future if the breakaways do not comply with the judge's order of yesterday.

The importance of yesterday's decision is to emphasize the historical realities of the two dioceses at hand. The Episcopal diocese was founded in 1785 and continues unbroken. The Anglican diocese began in October of 2012 and has no history before that point. The judge made this very clear in his two orders on enforcement. This finally disproves once and for all the claim that the diocesan leaders made to their followers before October of 2012 that they could take the Diocese of South Carolina out of the Episcopal Church intact. The federal court has now declared definitively otherwise.

A DAY OF DECISION

Today, Wednesday, 18 December 2019, is a day for the history books. The United States House of Representatives is set to vote on the impeachment of the president of the United States, Donald Trump. It is voting on impeachment for only the third time in American history. 

This is a solemn and grave moment in the 230-year history of our republic. Our country is in a constitutional crisis. Evidence shows that the president has violated his oath of office to protect and defend the Constitution of the United States. That same constitution gave the Congress the power to impeach and remove a president from office for treason, bribery, and other high crimes and misdemeanors. After weeks of the presentation of the evidence, it is clear to all reasonable people President Trump is guilty of bribery and obstruction of justice. 

What is at stake here is nothing less than the national attachment to the Constitution of the United States. President Trump has boasted that he can do anything he wants under his office. He cannot under the terms of the Constitution which has a tripartite government under checks and balances. So, the country is at a crossroads. We can validate a rising executive rule in disregard of the Constitution or we can validate the Constitution. It really is as simple as that. 

Unfortunately the nation is badly and dangerously divided with some forty percent of the people in favor of President Trump's rule. Trump has behind him some powerful forces, namely a great deal of social media, Fox News, much of talk radio, and most importantly, a servile Republican Party, Wall Street, the evangelical establishment (and who knows how much foreign help). Not long ago, the Grand Old Party stood for definite, old-fashioned principles:  balanced budget, law and order, family values, small government, strong foreign policy, opposition to Russia, individual freedom. No more. The days of Ronald Reagan are gone. Republicans have made a Faustian bargain with Trump to defend him completely in return for huge tax reductions to the one-percent, racism in the form of anti-immigration policy, packing the courts with young conservative judges, and rolling back countless democratic reforms. No one exemplifies this complete reversal more than Senator Lindsey Graham of South Carolina. The Republican party has repudiated its revered principles for short term gain from a demagogue.

All along in the run-up to impeachment Republicans have done everything possible to disrupt and de-legitimize the constitutional process. Their tactics were deny, delay, and yell. This is meant to negate the power of impeachment in the minds of the citizenry. Apparently they are going to vote straight down party lines on impeachment. So, we have a national crisis in which a large and powerful minority is trying to change our national political system to make it an authoritarian strong man government, in other words, to make an elected monarchy. The other side is larger but not as well-organized, focused, and well-funded, but they are resolved to defend the Constitution of the United States and the democratic republic values enshrined in it. Do not underestimate the importance of this moment in history. Either we Americans are going to keep the Constitution or we are going to move toward fascist authoritarianism.

To be sure, impeachment is not removal. If the House votes impeachment, the president will be put on trial in the Senate. The Republicans have a majority there. All along the Republicans have refused to take this impeachment process seriously. The Senate leaders, as McConnell and Graham have said publicly they do not take it seriously either. They said they will railroad it through in the Senate to acquittal as fast as they can. We should take them at their word.

Today, the battlefield for the future is in that beautiful Capitol  chamber of the House of Representatives. If you have been there, you know the room has two large portraits flanking the dais, Washington, representing the nation, and Lafayette, representing the world. Let us hope and pray that our 435 representatives assembled there today are mindful of the ingenious but fragile constitution that brought us to greatness both in this country and in the world and do the right thing.

For that, let us end with a prayer for Congress (BCP 821):

O God, the fountain of wisdom, whose will is good and gracious, and whose law is truth: We beseech thee so to guide and bless our Representatives in Congress assembled, that they may enact such laws as shall please thee, to the glory of thy Name and the welfare of this people; through Jesus Christ our Lord. Amen. 

AN HISTORIC MOMENT

As an old student of history, I am compelled to comment on today's momentous event. For only the fourth time in the 230-year life of our constitutional republic, the House of Representatives is set to impeach a president. The resolution was adopted in committee today and sent to the House. The House will probably vote on this next week and almost certainly will impeach President Trump by majority vote. This is a grave and somber day. Two presidents (Andrew Johnson and Clinton) went on to be put on trial in the Senate. Both were acquitted. One president (Nixon) resigned before the House moved to a certain vote on impeachment.

This is a dramatic moment in the contemporary culture war raging in America, and to some extent in the world. It should be put in context of the larger struggle at hand. According to the theory of revolution promoted by historians such as Crane Brinton, all revolutions go through phases. After a radical time of sweeping change, there is a conservative backlash before a settling down in a sort of compromise between revolutionaries and counter-revolutionaries. However, it is also chilling to note that three revolutions led to dictatorships: English>Cromwell, French>Napoleon, Russian>Stalin. 

As I have said repeatedly on this blog, the schism in South Carolina is part of the larger culture war in America. The diocesan leaders led the majority of the old diocese out of the Episcopal Church in 2012 as a direct result of the Church's reforms of equality for and inclusion of homosexual persons and women in the life of the church. The breakaway entity is now in a new denomination (2009) that was also explicitly created to keep gays and women from equality and inclusion.  

President Trump has masterfully consolidated the counter-revolutionary forces behind his personalized regime. He is now leading the counter-revolutionary charge against the great democratic revolution of post-World War II America.  He has combined economic conservatives (Wall Street) and social conservatives (the angry white working class man and evangelicals). These elements have become fiercely devoted to him. Wall Street loved his drastic reduction of their taxes. The AWWCM-Evangelicals loved his racism and his packing the federal courts with young right-wing judges. His acolytes have become so enthralled with him they have turned blind eyes to his challenges to long established norms and constitutional restraints. Perhaps most important of all, the Republican party has become slavishly devoted to Trump. For example, note the case of once critic Senator Graham of SC. Along the way our political system has turned into a game of personal destruction of people who criticize the Trump regime. It would not be unfair to say President Trump has drastically changed our political ethos, in my opinion for the worse. 

Did President Trump commit impeachable offenses? Yes, according to a consensus of constitutional scholars and independent commentators. It is clear to me he did. He attempted to get a foreign regime to contribute dirt on his political rival in return for money, which had actually been appropriated by Congress. The attempt did not actually work. However, the attempt to commit a crime is a crime even if the attempt fails. Then, to cover this up, he obstructed justice, particularly documents and witnesses legally called by Congress. In the face of indisputable facts, Trump and his allies insist the president did nothing wrong.

If the House impeaches, a virtual certainty, the president will be put on trial in the Senate which is equally certain to acquit. Meanwhile, the presidential election campaign goes on. The effects of these events on the campaign remain to be seen and will be fascinating to watch.

Trump and his economic-socio-cultural conservative allies are driving the counter-revolutionary backlash against the great democratic revolution of the late Twentieth Century and early Twenty-First Century. The backlash is turning out to be stronger than anyone could have predicted. In the long run, these elements cannot undo the democratic revolution but they can eat away around the edges. For instance, they are making it much harder for women to get legal abortions.

Polls show that Trump has an even chance of getting reelected. If he does win a second term we can expect an accelerated push of counter-revolution on many fronts. The anti-democratic rollbacks of the past three years will be small potatoes. 

We Americans are more divided than we have been in memory. Trump has masterfully stoked these divisions. They are not all our fault. We are victims of our own success. Since 1990 we are alone as the great power of the world. Since the Cold War ended, we have no unifying external threat such as we had with the old U.S.S.R. This has left us exposed to our internal divisions which are becoming ever more obvious and dangerous. Trump did not create these divisions. He simply had an innate genius at how to exploit them. 

Trump would have us turn away from two centuries of a constitutional republic and veer to an authoritarian regime where the president would assume enormous powers to the diminution of the traditional governmental structure. Hence, he has attacked the established power centers such as the Congress, the courts, the intelligence agencies, the diplomatic corps, and the law enforcement bodies as well as the media. He has said he can do whatever he wants as president. This is the challenge he is giving the country today. This is what led to impeachment. He is asking the country to validate his extra-constitutional dictatorship. If the voters do this next November, it will substantially change American history, away from egalitarian democracy toward fascist authoritarianism.

Democracies depend on the will of the people. The great thinkers who devised modern democracy in the Eighteenth Century, as Jean-Jacques Rousseau, knew this system would have an Achilles heal. Society could use its majority vote to end democracy. The philosophers never came up with a remedy for this danger. Thus, democracy is always fragile and subject to termination from its own people. This is essentially what Trump is asking Americans to do, trust him to make decisions that are beyond the bounds of the established constitution.

Will we survive the centrifugal forces of clashing divisions in America and the political forces capitalizing on them? Will traditional American democratic republicanism survive Trump? Will we remain one nation, or go off into our tribal corners? All good questions that call for much contemplation.

History has many examples where democracy failed, although the circumstances are all different. The Roman Republic, although not very democratic, lasted 500 years before Rome became the sole great power and its internal divisions were left exposed. The result was the death of the republic and the rise of the emperors. In the end, the empire fell because its citizens did not care enough to save it. Then there is the case of post-First World War Germany. At the end of the war, the kaiser fled and Germany was declared a democratic republic (the Weimar Republic). Germany had never been either a democracy or a republic. Through the 1920's this fledgling democracy struggled to deal with vast obstacles. When the Great Depression came along, it could not survive the threats to it as people reverted to their authoritarian roots. The Nazis came to power legally in 1933. The German people threw off a democratic republic they never really wanted anyway. The point is that democracy is not necessarily a permanent system, even in advanced societies. It must be protected by the citizens of the state to survive.

That is the challenge Trump is handing us. Do we keep the democratic republic we have struggled so hard to develop in this country, or do we hand over power to a strong man who may serve our momentary desires but leave us devastated in the end?

If history has taught me anything, it is to be an optimist. I see uplifting signs all around us. I see devoted statesmen and women who are committed to our democratic principles. I see courageous and impressive public servants who are devoted to the greater good. I see a society steeped in 230 years of an evolving democratic system that is the shining city on the hill and the beacon of hope to the world. We weathered the worst of storms, as the Civil War, because the majority of Americans were devoted to the democratic republican principles given to us by our founding fathers. I believe most Americans are still devoted to those principles. And so, I have confidence we will weather this storm too. 

AN ACT OF KINDNESS,
with update

11 December.     A news report in this morning's local newspaper made my day and I wanted to share it with you in hopes it will make your day too. Find an article about it here .

On last Monday, a donor entered a Wal-Mart store in my local area, in Anniston, Alabama. The store largely serves a low-income region of the county. The donor revealed his or her identity only to a supervisor who will not reveal it to the public. The donor proceeded to pay off the entire debt of the Layaway Department of the store. It amounted to many thousands of dollars, the exact amount the store will not say (an unconfirmed report said $65,000). The donor only asked that the store hand a note to each layaway customer "God Loves You. Jesus Paid the Price." Indeed. 

When word got out that this had happened, the news spread like wildfire leading to a stampede of people to retrieve their now free layaway merchandise. Tears and hugs abounded. By Monday evening, the Layaway Department shelves were all but empty. One must understand that Layaway is used by people who cannot afford to pay the full price of the items all at once but pay a bit along for weeks or months before Christmas hoping to finally pay the full amount before Christmas. This was a gift better than gold for so many people struggling to give their families a good Christmas against the odds of poverty. May we all do acts of kindness in our lives as we are able. The world all around us needs it.

P.S.     Greta Thunberg was just announced as Time magazine's Person of the Year (vive Jeanne d'Arc). Bravo, bravo, bravo! There are good people doing good things to make this a better world on the micro and macro levels.

UPDATE, 13 December.   The practice of secret santas paying off layaway accounts at Wal-Mart stores has become common around the country. Yesterday, a donor walked into another Wal-Mart in my county and paid off all the layaway debts to the tune of $25,000. This has happened in numerous Wal-Mart stores in this state and in many others. 

UPDATE ON LITIGATION

IN FEDERAL COURT
2nd. ed.

On 19 September 2019, U.S. District Court judge Richard Gergel issued an Order on the case of vonRosenberg v. Lawrence. The Episcopal Church side had filed this suit in March of 2013 claiming the secessionist side was in violation of the federal Lanham Act that protects trademarks. Gergel ruled entirely on the side of the Episcopal Church. He said the Episcopal Church diocese was the continuation of the historic diocese and entitled to all the titles, rights, insignia, etc. of the old diocese. He included a permanent injunction forbidding the breakaway organization from using these or claiming to be the historic diocese. This was a landmark decision greatly bolstering the Church's claim in the courts that the Episcopal Church is a hierarchical institution to which civic courts must defer as per the First Amendment of the U.S. Constitution. On the surface, the breakaway side complied and removed the most obvious names and insignia of the old diocese from their website. They began calling themselves "The Anglican Diocese of South Carolina."

On 4 October, Judge Gergel issued the final summary judgment of his 19 September ruling. Three days later, the ADSC announced it was going to appeal this ruling to the U.S. Court of Appeals, Fourth Circuit, in Richmond. On 18 October ADSC officially registered its appeal with Gergel.

At that moment, everything seemed to be on track for a regular appeal to the Fourth Circuit. Then, on 11 November, the Episcopal diocese filed a petition with Gergel, "Petition to Enforce the Injunction." In this, the Church side loudly protested the breakaways' continued references to the historic diocese and particularly to the name "Anglican Diocese of South Carolina," which, it said, was much too close to the official name of the historic diocese. The church lawyers asked the judge to "take appropriate action" to make the breakaways comply with the 19 September injunction, even to choosing a new name substantially different than "Anglican Diocese of South Carolina." The church petition did not spell out contempt of court, but one could infer such from it. 

Nine days later, on 20 November, the ADSC lawyers filed a response, "Defendants' Response to Plaintiffs' Petition to Enforce the Injunction." They pointed out that the title "Anglican Diocese of..." had been adopted by other groups that left the Episcopal Church. This is partially true. In Pittsburgh and San Joaquin, the secessionists chose the name "Anglican Diocese of..." at the time of their departure from TEC. In the old Episcopal Diocese of Quincy, the breakaways call themselves "the Diocese of Quincy." In Fort Worth, both sides still call themselves the Episcopal Diocese of Fort Worth and use the official seal. This must be confusing to the courts. 

In their paper of 20 November, the ADSC lawyers insisted the diocese had complied with the orders of the court and had chosen a standard, but different, name. It was their assertions about history that I found entirely false. They declared the two groups had a "shared history" and that "Until 2012, the Plaintiff and Defendant Dioceses were the same entity." Not true. Here we need a little history lesson:

The Episcopal churches in South Carolina formed a state association in 1785, later called a diocese. In 1789, representatives from SC joined several other state delegations in Philadelphia to draw up and adopt the Constitution and Canons of the church. It was understood that SC acceded to this at the moment the delegates signed the document. These are the origins of the historic diocese. 

In October of 2012, the leadership of the diocese declared unilaterally that the diocese had disaffiliated from the Episcopal Church. Since then federal and state courts in South Carolina have ruled that the diocese did not, in fact, leave TEC. The leadership and subsequently the majority of the members of the diocese left TEC in 2012. As they left, they formed a new diocese, separate and apart from the historic diocese. Judge Gergel and the majority of the SC supreme court justices have agreed that the Episcopal Church diocese continued on as the historic diocese. The courts have ruled that the breakaways did not disaffiliate the diocese from the national church. What they did was to create a new religious denomination.

This meant the breakaway organization was something new and different in the eyes of the law. Thus, the association that today calls itself the Anglican Diocese of South Carolina was created in 2012. It has no legitimate claim to any part of the historic diocese of South Carolina. It has no "shared history" with anyone before 2012 because it did not exist before 2012. The leaders and members of the new diocese used to be members of the historic diocese. That is all. Once they left the old diocese, they left behind any claim to its legitimacy, names, marks, and property. Thus, the lawyers' rationale in their paper of 20 November response is without historical substance.

Five days later, Church lawyers filed with Judge Gergel their reply to the breakaway's arguments of 20 November: "Reply to Response to Petition to Enforce the Injunction." Here, the lawyers bristled at the assertion of "shared history," and rightly so. Once again, at length, they insisted the name "Anglican Diocese of South Carolina" was far too close to the name of the historic diocese, in fact, the same except for one word. And, once again, the Church lawyers called on the judge to take "appropriate action" to make the breakaways comply with the court order and injunction. This could possibly mean penalties for contempt of court.

Here the story takes another twist. On the same day the Church side submitted its reply to ADSC, 25 November, the breakaway lawyers filed a motion with Judge Gergel for a stay of his 19 September order, more than two months after the order and injunction! They filed "Motion to Stay Pending Appeal." We get the usual arguments that everything should be put on hold while the Appeal Court considers an appeal and renders a judgment. There is a certain logic to that. What shocked me in this paper was the blatant refusal to accept the very public court decisions. It was as if the state supreme court and federal court had done nothing.

For instance, the ADSC lawyers wrote "In 2012, the Diocese of South Carolina eliminated its corporate allegiance to TEC by withdrawing from this incorporated association" (p. 3). Not true. In fact, both the federal and state courts have ruled very clearly that "the Diocese of South Carolina" did not withdraw from TEC. The measures the leaders of the diocese took to separate the diocese were illegal, null and void. It takes a lot of nerve to tell a federal judge that his ruling was wrong, especially when one is trying to get that same judge to agree to a stay, and on top of that doing it two months after the judge's order. This layman is baffled by these lawyers' tactics.

The very last paragraph on the last page takes the cake. The ADSC lawyers refused to accept the SC Supreme Court decision. They wrote:  "the state court proceedings in the 2013 lawsuit remain pending. Issues still to be resolved include the use of the names of the diocese, if any of the defendant parishes acceded to the Dennis Canon thereby subjecting their real and personal property to a trust in favor of TEC, and whether an injunction remains in effect against TEC and TECSC from using the state-registered marks." No, the state court proceedings are not pending! What is pending is the circuit court judge's implementation of the final order of the South Carolina Supreme Court, of August 2, 2017. The "issues" have all been resolved in the eyes of the courts and the law. If I were Judge Gergel, I would be tempted not only to deny this motion for a stay but to pair it with penalties for contempt of court. I find this motion for a stay remarkably disingenuous. 

On 6 December, Church lawyers filed a counter paper to ADSC's motion for a stay, "Plaintiffs' Opposition to Defendants' Motion to Stay Pending Appeal." They argued there was no good reason for a stay and, besides, the appeals court would almost certainly uphold the district judge's decision.

It is interesting to note that the breakaway lawyers complied with Gergel's order of 19 September, or at least somewhat. Right away, the secessionist organization took off the names and symbols from their website, at least the obvious ones and chose a new name. Then, two months later, they asked for a stay. One can only wonder at what happened in those two months to change their minds. Was it that the Church lawyers demanded they choose a name substantially different than the one they chose?

What all this suggests to me is that the aim of the breakaway side may be to try to reach a de facto settlement, the one the Episcopal side offered in June of 2015, the diocese for the parishes. The secessionists know the Episcopal Church has the historic diocese and all this entails. It is extremely unlikely the appeals court will overturn Gergel's very strong and clear order to that effect. They know they have lost the diocese. However, they have not quite lost the parishes because the circuit court has refused to implement the state supreme court decision. For two years, the circuit court judge has dragged his feet. He has done nothing to implement the two clear majority decisions on the last page, that 28 parishes are property of TEC and Camp St. Christopher is property of the Episcopal diocese. As long as he refuses to do anything about the SCSC decision, the breakaways occupy and use the parishes and camp in question. This may be turning into an effective settlement, the diocese for the parishes. Until and unless Judge Dickson takes measures to enforce the SCSC decision, this de facto settlement will continue and as it does, slides into permanence. If that happens, the breakaways will snatch victory from the jaws of defeat.



2nd. Edition addendum:

The ADSC lawyers are appealing Judge Gergel"s Sept. 19 decision to the U.S. Fourth Circuit Court of Appeals, in Richmond. The appeals court has issued the following dates:

ADSC submit opening brief to the court by January 14, 2020.

EDSC submit response brief to the court by March 2, 2020.

If ADSC wishes to file a reply to EDSC's response, it must be done by March 24, 2020. 

ALABAMA ANNOUNCES FOURTH CANDIDATE
FOR BISHOP COADJUTOR

The Diocese of Alabama announced today a fourth, and final, candidate for election as bishop coadjutor. He is the Rev. Aaron D. Raulerson, rector of the Episcopal Church of the Epiphany, in Guntersville, Alabama. Find more about him here .

Raulerson joins the Rev. Dr. Glenda Curry, the Rev. Evan Garner, and the Rev. Allison Liles as candidates for coadjutor. Although the election is for coadjutor, it is in effect for the next diocesan bishop of Alabama since the present bishop, Kee Sloan has announced his intention of retirement. All four candidates have strong ties to the state of Alabama, two presently serving parishes in the Diocese of Alabama. There are two women and two men on the slate. 

This completes the nomination process. On January 4, 2020, there will be a "walk-about" for the public to meet the candidates, at St. Luke's of Mountain Brook (Birmingham). If at all possible, I will attend this event and discuss with the candidates ways to keep the diocese in the mainstream of the Episcopal Church where it has always been. The election will be on 18 January, at the Cathedral Church of the Advent, Birmingham. The ordination/consecration of the new bishop is planned for 27 June 2020 at the Advent, in Birmingham.

TEXAS SUPREME COURT HEARS CHURCH CASE

Today, 5 December 2019, the Texas Supreme Court heard arguments in the Episcopal Church case. A video of the hearing is available online here . Today's session was on an appeal of the TX Second District Court of Appeals decision of April 5, 2018. See my blog report on this here . This Appeals court decision was a 178-page masterpiece overwhelmingly on the side of the Episcopal Church. The breakaways appealed it to the state supreme court. The Appeals court opinion of 5 April 2018 is well worth a second look. Find it here .

In today's hearing, the justices seemed a bit irritated that they had this case at all. Justice Blacklock asked several times why this had not been settled by negotiations. Each side blamed the other. The schismatics' lawyer, Scott Brister said of TEC, "they don't settle." Not true. In fact, TEC offered to give all 36 parishes in SC independence and property in return for the entity of the historic diocese, in June of 2015. It was the breakaway side that rejected this. Brister also said courts around the country have decided about half and half. Not true. The breakaways won in exactly one place, Quincy. They lost in Pittsburgh, San Joaquin, and SC. 

Essentially Brister argued this as a neutral principles case between two equal parties. 

The church lawyer, Thomas Leatherburg argued that the diocese was created by the Episcopal Church under terms of TEC. Under those terms it was subject to the Constitution and Canons of TEC. "This is in the nature of a contract." It cannot be broken unilaterally. The breakaways had no right to take the diocese out of TEC. The church position was this is ultimately an ecclesiastical matter. 

As in SC, the Dennis Canon figured prominently. Actually, the TX supreme court had ruled earlier that the Dennis Canon did not go into effect in TX because under state law, the deed holder had to make a trust. The Appeals Court agreed with this. However, the Appeals Court said the Dennis Canon really did not matter in this circumstance because, since the Episcopal Church was hierarchical, the diocese (and its properties) remained part of TEC. In its decision, the Appeals Court said:  "The Corporation [Corporation of the Episcopal Diocese of Fort Worth] is to hold real property acquired for the use of a particular parish or mission in trust for that parish or mission's use and benefit..." (p. 141). Thus the diocese held the local properties, and the Episcopal Church determined the diocese. The breakaways' claim that they retained the historic diocese and its properties was invalid. 

The Dennis Canon itself was not the issue today. The issue was whether the breakaway group had the legal right to take the diocese out of the TEC. The breakaway lawyer said they did have the right under state law. The church lawyer said they did not have the right because TEC was hierarchical. This was the position clearly taken by the Appeals Court under the principle of hierarchy. The ownership of the properties then is the collateral of the larger issue. The Appeals Court recognized the Episcopal Church diocese as the legal heir of the historic diocese. Since the corporation of the diocese was the holder of the properties and the Episcopal Church was hierarchical, the Episcopal Church diocese would control the local properties. The breakaways would have no claim to the historic diocese and/or its properties.

Now, the TX supreme court justices will have to decide whether to uphold or reverse the Appeals Court decision. The weight of the matter is on the side of the Appeals Court decision, and therefore the Church. The supreme court will have to find substantial errors in the Appeals Court opinion in order to change it. I did not hear much support for reversal in the hearing today.