22 APRIL 2019 --- NOTES

Now that Lent, Holy Week, and Easter Sunday have passed, we can refocus our attention on the status of the schism. Where do we stand now in the legal war?

At this point, the litigation is a waiting game. There are two separate avenues of the legal combat between the independent Diocese of South Carolina and the Episcopal Church and its diocese, the Episcopal Church in South Carolina: state court and federal court. In essence, the state court is about the ownership of the local parishes while the federal court is about the ownership of the pre-schism diocese.

STATE COURT. Summary:  DSC sued TEC January 4, 2013 claiming the ownership of the old diocese. The circuit court agreed with DSC in an order, Feb. 5, 2015. On August 2, 2017, the South Carolina Supreme Court overturned most of the circuit court decision. The SCSC said 29 of the 36 parishes in question were property of TEC and Camp St. Christopher belonged to TECSC. SCSC denied rehearing; U.S. Supreme Court refused to take up the case leaving the SCSC Aug. 2 decision as final. DSC refused to accept the decision. 

SCSC remitted its Aug. 2 decision to the circuit court for enactment. DSC charged that the decision was vague, conflicted, and unenforceable. It filed three actions in the circuit court, one asking the circuit court to reexamine the issue of the property. TEC/TECSC asked the judge, Edgar Dickson, to implement the decision. Dickson had the case for 15 months and did nothing to enact the SCSC decision whereupon TEC/TECSC asked the SCSC to issue a Writ of Mandamus ordering the circuit judge to carry out the Aug. 2 decision. 

This is where we stand now: we are awaiting the SCSC ruling on whether it will grant or deny a Writ of Mandamus to TEC/TECSC. It took the SCSC 22 months to issue its decision in the church case. Will it take that long again? Doubtful. I have found two instances in which parties petitioned the SCSC for Writ of Mandamus in the past few years. In one, the SCSC released its decision in 3 and a half months. In the other, the SCSC took 6 months. So, my guess is we will have a response from the SCSC between June and September. How will SCSC rule? It is very hard to imagine that SCSC will not stand behind its remittiture of the Aug. 2 decision. The big question mark is whether the SCSC justices will consider 15 months to be sufficient or insufficient time for the circuit court to act. If they think sufficient, they will rule for TEC. If they think insufficient they will side with DSC.

FEDERAL COURT. Summary: In March of 2013, the TECSC provisional bishop sued Bishop Mark Lawrence of DSC charging him with infringement of copyright under the Lanham Act. In essence, TEC/TECSC is claiming the right to inherit the pre-schism diocese which is currently under the control of DSC. The issue here is, Who owns the diocese (titles, rights, assets) as it existed before the schism of Oct. 15, 2012? Both claim to be the legitimate Episcopal diocese.

This suit languished in the U.S. District Court, in Charleston, for several years under Judge Weston Houck although twice the U.S. Court of Appeals, in Richmond, ordered the lower court to act. After Houck's death, the case wound up with Judge Richard Gergel,

Where does this case stand now? Both sides have asked Gergel to render a decision. It is possible he will do so, that is, on his own without further court proceedings. However, he can hold a trial; and he has scheduled a formal trial after May 1, 2019. There has been no word from Gergel in several months. Thus, apparently one of two things will happen in the federal case, either Gergel will rule on his own, or he will hold a trial then render a decision. There is no way to know which of these is more likely. 

What will Gergel decide? Signs so far are favorable to the Church side. Besides, it is just common sense that a diocese cannot leave the Episcopal Church and still claim to be the Episcopal diocese. Either it is the Episcopal diocese or it is not. When the breakaway diocese self-proclaimed its independence from the Episcopal Church, it ceased to be the Episcopal diocese regardless of what it claimed or called itself. I fully expect Gergel to come down on the side of the Episcopal Church in this case. It is just common sense.

Thus, in conclusion, we are in a waiting phase of the legal war. We are waiting on the SC Supreme Court either to tell judge Dickson to act, or to leave him alone. His job is to implement a final decision of the state supreme court. He can delay but he cannot deny. I suspect that even if the SCSC denies the Writ, the justices will remind Dickson of his responsibility to act expeditiously. Dickson has to implement the decision that, contrary to DSC's claim, is clear, direct, and enforceable. 

We are also waiting on the federal judge, Gergel, to issue a decision directly or to hold a trial and then issue a decision. At this moment there is no way to know which of these he will do. However, odds are he will eventually rule in favor of the Episcopal Church.

So, here we are, waiting on the state and federal courts to act. It has been six years and three months since this unfortunate legal war began. The cost has already been between 5 and 10 million dollars. Most of the time has been spent waiting. I wish it were different, but it is what it is, and there is nothing we can do about it. TEC/TECSC several times offered DSC compromise settlement and mediation only to be rebuffed. After such long and bitter quarreling between brothers and sisters, it is understandable that everyone is exhausted and a bit disheartened. This ugliness should not be happening. This schism was unnecessary. It may be hard to believe now, but this tragedy will come to an end one day and when it does everyone should be able to say he and she behaved as the best Christian he or she could. In the end, there will be a time of closure, reconciliation and healing. It will happen. 

THE QUEEN OF SEASONS, BRIGHT

Now the queen of seasons, bright
with the day of splendor,
with the royal feast of feasts,
comes its joy to render;
comes to glad Jerusalem,
who with true affection
welcomes in unwearied strains
Jesus' resurrection.

Neither might the gates of death,
nor the tomb's dark portal,
nor the watchers, nor the seal
hold thee as a mortal:
but today amidst thine own
thou didst stand, bestowing
that thy peace which evermore
passeth human knowing.
200, "Come ye faithful, raise the strain," 3-4.


Happy Easter, readers. It is the feast of of the Resurrection, the greatest day of the Christian year, the time for our unrestrained rejoicing. The sorrows of Good Friday have passed, our forty days of soul emptying are done. Grace has overcome sin. Good has defeated evil. Life has vanquished death. Light has banished the darkness. The world is new again.

To be sure, here in the south spring has been going on for weeks now. The new life has been evident for a long time. This year, with Easter at a late date, there is a discordance between the church year and the natural season. I am one of those who thinks Easter should have a fixed date, as the first Sunday in April, so that it would better correspond to the natural order. Celebrating new birth in faith long after the new birth in nature seems misplaced.

At any rate, let us walk around my garden as it appeared in the past few days and enjoy the beauty of God's creation in this glorious springtime.

A walk path on the smaller side looking toward the lawn. Purple shrubs on  left are loropetalum, on right Francis Mason abelia. The small tree on right is weeping Mulberry (Morbus alba). It has an umbrella shape.

The weeping mulberry is on the right in this picture. Evergreen is Spartan Juniper (Juniperus chinensis 'Spartan'). Palm is windmill palm (Trachycarpus fortunei). In home cultivation, windmills grow to 15-20' tall. They are the cold hardiest of all of the tree forms of palm and makes an excellent garden specimen in zone 7B up. I have two behind my house that are about 15' high. The walk path is between the palm and the loropetalum.

Deutzia (Deutzia gracilis) in foreground. Behind is Grancy greybeard. Deutzia is an old and reliable favorite small shrub in southern gardens. One can see why. Grancy greybeard is another common small yard tree in the south, an eye-catcher in the spring.

Chinese fringe tree (Chionanthus retusus). In the spring it is covered with clusters of white "fringes." This one is full grown at about 20 '. The bush palm on the lower right is Needle palm, cold hardy.

On the smaller side of the garden looking toward the central lawn that divides the two parts. Lower left is Deutzia, upper right the Grancy greybeard. The small tree on left is Corkscrew willow.

The larger part of the garden from the lawn. The Knock Out roses are out in full bloom early this year. The walk paths are to the right and left of the picture.

Mock orange, aka English Dogwood (Philadelphus coronarius). Mock orange is well-named. The appearance and aroma of its flowers in spring reminds one of orange blossoms (I once lived in Orlando). This small tree is full grown at about 12'. 

Looking down a walk path, toward the lawn, in the larger part. Shrub on lower right is Alabama croton (Croton alabamensis), an endangered species. It grows in the wild now only in several spots, mostly in northern Alabama. It is on the verge of extinction. (If you want to help save a noble shrub, plant one; however, they are rare and hard to find.)  On lower left is a dwarf form of Russian olive (Eleaganus), Eleaganus pungens 'Hosoba fukurin'.

A perennial bed in the larger part. In foreground is Bluestar (Amsonia hubrichtii). The small tree is Eve's necklace (Sophora affinis). The banana trees are shooting upward. The palm on the left is a shrub, Louisiana palmetto.

My best wishes to you on this happiest of days in this "queen of seasons, bright." Enjoy the glories of the new life all around us as we remember what is really important in life.

TEC/TECSC LAWYERS FILE REPLY

TO DSC'S RESPONSE

Today, April 17, 2019, the lawyers for the Episcopal Church and the Episcopal Church in South Carolina filed a Reply to the Diocese of South Carolina's Response to TEC/TECSC's March 20, 2019 petition to the South Carolina Supreme Court for a Writ of Mandamus. Find the Reply here . The Writ would direct circuit court judge Edgar Dickson to implement the SCSC decision of August 2, 2017 in which the high court held that 29 of the 36 parishes in the suit were property of the Episcopal Church and that Camp St. Christopher was property of the Church diocese. Dickson has had the SCSC decision before him for 15 months and has failed to take any action on it. Find this blog's discussion of TEC/TECSC's petition here .

On April 11, the DSC lawyers filed with the SCSC a response. Find this blog's piece on the DSC response here .

TEC/TECSC's filing today is in reply to the DSC response. Find the TECSC article about today's paper here .

In today's reply, the Church lawyers raise several important points:

1)     DSC has already taken the position that TEC/TECSC owns the parish properties in question. They did so in their Betterments lawsuit filed in the circuit court last November. The Betterments law says that people who occupy property that they believe they own but that really belongs to someone else are due reimbursement by the property owner for the improvements they made on the property. By filing the Betterments suit, DSC recognized that the Episcopal Church owned the parish properties.

2)     The City of Rock Hill v. Thompson case of 2002 is not appropriate to the present case because the matter at hand is the circuit judge's ministerial duty to carry out the law that the SCSC has handed down in its decision. 

3)     The church case has been adjudicated and the SCSC decision has become final. The case is closed and cannot be re-adjudicated in the courts.

4)     Most importantly, the delay in the implementation of the SCSC decision of Aug. 2, 2017, is doing harm to the Church. This is the strongest argument the TEC/TECSC lawyers are making now:

This is a plain admission that they are not holding and protecting the property for Petitioners [TEC/TECSC], but rather are improperly using it for their own purposes. That property includes unique real estate, historic buildings, and artifacts that cannot be replaced, along with accounts held in trust that are being depleted as this litigation is being improperly prolonged. Under these circumstances, Petitioners [TEC/TECSC] should not be relegated to continue to wait for their chances to appeal---while the Circuit Court delays and relitigates the merits, exceeding its jurisdiction on remittitur and failing to perform its ministerial duty to enforce this Court's mandate.

It has now been more than 20 months since this Court issued its final and dispositive decision on August 2, 2017. Petitioners are duly entitled to the transfer of the property that they have been awarded and that is being misused and depleted by Intervenors [DSC].

Thus, TEC/TECSC is making the strong case that the SCSC decision of Aug. 2, 2017 must be implemented soon not only because it is the law of the land but also because inaction is doing actual harm to the properties and their legal owners, TEC/TECSC.

It is unclear what happens next in this matter. DSC could file a reply to the reply. Judge Dickson could make some sort of statement in his defense. The SCSC justices could proceed and issue a ruling on TEC/TECSC's petition for a Writ. Whatever, I will report developments as I learn of them.

CHURCHES AND DISASTERS

I am still reeling from yesterday's fire at Notre Dame de Paris. It is hard for me to look at the videos and pictures that are now readily available on electronic media. One of the greatest cultural treasures of the world has been badly damaged. As devastating as it was, however, it could have been much worse. Notre Dame could have been destroyed.

This morning's reports say that the west (main) facade has been spared and the two towers and the bells are intact. The stone walls are also standing. Authorities are now assessing the integrity of the towers and walls. There is fear that there may still be danger of collapse. Reports also say the three magnificent rose windows were spared as well as the great organ although they may have been damaged. Apparently all of the great relics were removed for safe keeping, most importantly the Crown of Thorns and St. Louis's tunic.

I have a personal attachment to Notre Dame. As a young, and poor, graduate student in 1970, I spent my days buried in the archives and libraries of Paris and my free time exploring the great monuments of the city, most of which had no or low admission cost. Notre Dame was a (free) favorite. I climbed the great towers, studied all of the sculptures, admired all of the stained glass windows I could reach, walked all around the outside. If one has not heard the great organ in full force during Mass, well, you just cannot imagine the electricity of the sound. All in all, Notre Dame was one of my favorite places in the world and continued to be every time I returned to Paris.

Yesterday's fire reminds all of us that our local churches are just as vulnerable to disasters, natural and man-made. And, in a way, our local church is just as important to us as Notre Dame is to the world, the center of our hearts. Irreplaceable. 

We are not able to prevent some disasters; and these buildings are after all physical structures that are not permanent. They are all transient. So, we need to remind ourselves of ways we can protect our local treasures against damage. Here are some common sense suggestions:

1)     Make sure your church insurance is adequate and current. Know the coverage.

2)     Inventory, photograph (video and still), and provide written descriptions of every item of furnishing of the church. In case of destruction, you will have to provide evidence of the items lost. This would include altar furnishings, vestments, stained glass windows, other furnishings, lighting fixtures, and furniture. (In my local church the chalice and paten were made of coin silver and given by the founders in the 1840s. In 1940 a traveling circus moved through town and when they left, the churches, which were never locked, discovered numerous items missing. The priceless chalice and paten have never been located. Lesson-at least lock the doors.)

3)     Photograph (video and still) and provide written descriptions of the physical structure inside and out.

4)     Archives should be kept in fireproof containers.

5)     Keep the records and inventories separate from the church or in a fireproof container.

6)     Make sure fire alarms, smoke detectors and the like are functional.

7)     Have a plan in case of natural disasters, as tornadoes. (Several years ago, our church had a tornado warning during the main Palm Sunday service. We herded the congregation into the basement and opened up all the doors. The tornado missed us but struck another church destroying it and killing several people.)

We tend to think that our church is safe and will always be there. Yesterday's event tells us that no church is indestructible. We would be wise to prepare for the worst.


UPDATE, Apr. 17. New reports say the structure of Notre Dame is stable enough for the roof to be rebuilt. This reflects the genius of Gothic architecture as perfected in the High Middle Ages. It was based on three architectural innovations: pointed arch (carries more weight than rounded arch), ribbed vaulting (stone "ribs" carry weight from top of ceiling to inside pillars), and flying buttresses (prop up the exterior walls). These removed the weight from the walls allowing large stained glass windows. Of the three, the one most in doubt in the fire was the second, the ribbed vaulting. It is actually in the stone ceiling below the wooden timbers that support the roof above. It was the network of wooden timbers between the roof and the ceiling that burned and caused the other damage. Photos show that the ribbed vaulting collapsed in a couple of spots (transept and nave) but that the system of the vaulting as a whole stood. This is the best news of the day and is a testament to the brilliance of the medieval cathedral architects, most of whom are unknown today. Owing to their ingenious plan, Notre Dame's fire was damaging but not catastrophic. 

THE DSC LAWYERS' RESPONSE 

TO TEC/TECSC'S PETITION 

FOR WRIT OF MANDAMUS

On April 11, 2019, the lawyers of the independent Diocese of South Carolina filed with the South Carolina Supreme Court their response to the Petition for Writ of Mandamus that the Episcopal Church and Episcopal Church in South Carolina's lawyers filed with the SCSC on March 20, 2019. The TEC petition essentially asked the justices to order Judge Edgar Dickson to implement the SCSC decision of August 2, 2017.

To help us understand what is happening here and what might reasonably occur in the near future, I am going to provide a timeline of the matter, a summary of DSC's response of 11 April, an analysis of its main points, and projections on what is likely to ensue in the near future. Again, my standard disclaimer: I am not a lawyer, not an official of any diocese, and here giving only my opinions.

TIMELINE

2015, 23 September --- the SCSC held a hearing on the appeal of the Feb. 3, 2015 order of the First Circuit Court. That order found all in favor of DSC.

2017, 2 August --- the SCSC issued its decision. It made three rulings by majority vote. Here is the last page (p. 77) of the decision giving the three rulings (click on image for enlargement):

The decisions:  1-the 8 parishes that did not accede to the Dennis Canon hold title to their properties, 2-the 28 parishes that acceded to the Dennis Canon are properties of the Episcopal Church, and 3-Camp St. Christopher is property of the Episcopal Church diocese.

2017, September 1 --- DSC filed with SCSC for 1-rehearing, and 2-recusal of Justice Kaye Hearn from the case.

2017, November 17 --- SCSC 1-denied DSC's petition for rehearing, 2-denied Hearn's recusal, and 3-issued a remittitur to the First Circuit Court. Here is the Order denying Hearn's recusal:

(I am placing this here because quotes from it formed a major part of DSC's April 11 argument. I will return to this momentarily.)


DSC'S MOTIONS/PETITIONS IN CIRCUIT COURT 2017-18:

     Nov. 19, 2017 --- Betterments suit.

     Dec. 27, 2017 --- Complex case designation.

     Mar. 23, 2018 --- For clarification of jurisdiction.

TEC/TECSC's MOTIONS/PETITIONS IN CIRCUIT COURT 2017-18:

     Dec. 15, 2017 --- To dismiss Betterments suit.

     May 8, 2018 --- For execution of SCSC decision and appointment of a special master.

     July 11, 2018 --- for an accounting.


2018, January 10 --- Chief administrative judge of the First Circuit, Diane Goodstein, appointed Judge Edgar Dickson to administer the case.

2018, February 9 --- DSC filed petition for cert with the U.S. Supreme Court.

2018, June 11 --- SCOTUS denied cert.

2018, July 26 --- Dickson held status conference and asked for lists of requests from both sets of lawyers.

2018, August 2 --- Lawyers submit their lists to Dickson.

2018, Sept. 4 --- Dickson announced a timeline for arguments.

2018, Sept. 24 --- DSC filed 3 sets of arguments with Dickson. TEC/TECSC filed 3 sets of arguments with Dickson.

2018, Oct. 5 --- DSC filed 3 responses with Dickson. TEC/TECSC filed 2 responses to Dickson.

2018, Oct. 12 --- DSC filed 1 reply to the responses. TEC/TECSC filed 1 reply to the responses.

2018, Nov. 19 --- Dickson held a hearing and announced he was considering only one of the six petitions before him, DSC's request for clarification of jurisdiction.

2019, January 14 --- Dickson sent an email asking the lawyers for documents on the parishes' accession to the Dennis Canon.

2019, March 19 --- Dickson set a hearing on DSC's Betterments suit, on 27 March.

2019, March 20 --- TEC/TECSC filed petition for writ of mandamus with the SCSC.

2019, March 26 --- Dickson cancelled Mar. 27 hearing on Betterments.

2019, April 11 --- DSC filed "Intervenors' Return to Petition for Writ of Mandamus," with SCSC, as response to TEC/TECSC's petition for writ, of 20 March.

SUMMARY OF DSC'S RESPONSE

The full text of DSC's response is found here .

These are the main points in DSC's response:

1) There is no coherent guidance, but instead great uncertainty in this case.

     (p.3-4), Acting Justice Toal concluded that the "Courts' [sic] collective opinions in this matter give rise to great uncertainty in that we have given little to no coherent guidance in this case. Given our lack of agreement, I have no doubt that the court will see more litigation involving these issues..."

     (p. 10), As Acting Justice Toal and Justice Kittredge noted the "Courts' [sic] collective opinions in this matter give rise to great uncertainty in that we have given little to no guidance in this case..."

     (p. 17), 5 separate opinions..."give rise to great uncertainty" (Toal, A.J.)"

2) The circuit court must discern the meaning of the SCSC decision of Aug. 2, 2017, and has discretion to do so.

     (p. 9), V. The motions before the Circuit Court require the exercise of judicial discretion."

     (p. 11), The motions before the Circuit Court arising out of the 5 separate opinions of this Court do not involve "the execution of a specific duty arising from fixed and designated facts...defined by law with such precision as to leave nothing to the exercise of discretion."

3) Writ of Mandamus is improper before a judge has ruled.

     (p. 6), Mandamus is not available when the inferior court has not refused to rule on the issue raised by the Petition."

4) a "remittitur" order does not prevent a lower court from considering the issues.

     (p. 8), Even where a case is not "remanded," the return of the remittitur to the circuit court re-vests the circuit court with jurisdiction to hear motions seeking further consistent relief."

(reversing circuit court order that dismissed case for lack of subject matter jurisdiction because the matter was remitted rather than remanded, holding that it was a distinction is without a difference).

5) asserts that the parishes and the diocese own their properties.

     (p. 12), Third, it is uncontested that no parish expressly agreed to the Dennis Canon.

     (p. 14), The Diocese withdrew from TEC with all its property since it followed the same procedures as did the All Saints parish with the same result and since it was admitted the Dennis Canon did not apply to the property of the Diocese.

In sum, DSC argues two major points:  1-the circuit court has discretion, and 2-Writ of Mandamus is improper in this instance because the circuit court has not refused to implement the SCSC decision of Aug. 2, 2017.

THOUGHTS ON THE FIVE SUMMARY POINTS

The most glaring part of DSC's response is what is not there. There is no mention of the three orders given by the SCSC on the last page of their August 2, 2017 decision. This is, after all, the whole point of the matter at hand. TEC/TECSC is asking the high court to order the circuit judge to implement the three orders in the SCSC decision. DSC completely ignored the elephant in the room. To my thinking, DSC gave tacit recognition of the three decisions since it did not address them, let alone try to refute them.

1) On the first point, that there is confusion and no coherent guidance. Read the three orders on page 77 again. Someone please tell me what is "confusing" or "incoherent" about any part of these three decisions. They are as clear as they can be. I am lost as to why Judge Dickson, or anyone else for that matter could see these three majority decisions as unclear. They are, in fact, perfectly clear.

Nowhere in the SCSC decision is there a suggestion that the decision is unclear, conflicted, or to be discerned. In fact, the last page gives three direct and clear majority opinions to be enacted. 

Then, what about the quote from Toal? Three times the DSC lawyers quoted her implying, at least in my reading, that she saw the SCSC decision as uncertain and lacking guidance. In fact, she did not say that about the Aug. 2 decision. These quotes are seriously made out of context and the TEC/TECSC lawyers should point out this to the SCSC justices. 

The quote the DSC lawyers used is actually from the November 17, 2017 Order in which the SCSC denied the recusal of Justice Hearn, and Toal's words are in reference to that. Scroll up on this post and re-read page 3 of the Order. Toal's last paragraph is about the issue of Hearn's recusal, specifically about appointing a justice to replace her. It is not about the Aug. 2 SCSC decision itself. Any suggestion that Toal was referring to the Aug. 2 decision is misleading. When Toal wrote about uncertainty and no coherent guidance, she was talking about the issue at hand, recusal. In the Aug. 2 decision, she did not say anywhere that it was uncertain, unclear, conflicted, or unenforceable, all assertions that DSC made after the fact. Quite the contrary, it was Toal herself who listed the three decisions on the last page. It was Toal who named the 8 parishes outside TEC control, on p. 52, thereby revealing the 28 parishes under TEC control. Therefore, any assertion that Toal saw the SCSC decision as anything but clear and enforceable is unfounded.

The DSC lawyers also made two errors. "Courts'" is actually "court's" in the text quoted. Courts' would mean plural courts while court's would mean one court, in this instance the SCSC.

They also attributed Justice Kittredge to the quote on p. 10 that came only from Toal.

2) Discretion is a major issue here. DSC claims the circuit court has discretion while TEC/TECSC says it does not, but has a "ministerial" duty to apply the law. So, the question is, does Judge Dickson have discretion in how he interprets the SCSC decision of Aug. 2?

The most appropriate case history here is the 2002 City of Rock Hill v. Thompson. In this, the SCSC denied a writ of mandamus requested by the City of Rock Hill holding that the judge in question had discretion on how she applied the law, and had not made a ruling. Find a discussion of this case here . 

The SCSC decision of Aug. 2 gave three clear orders. The court remitted their decision to the circuit court without comment. They did not say the lower judge had discretion or that the three decisions needed any interpretation. Since SCSC denied rehearing and SCOTUS denied cert, the SCSC decision of Aug. 2, 2017 became the law of the land. It cannot be altered. It is not open to change. Therefore, a lower judge does not have discretion in how he interprets the decision. It is his sole ministerial job to apply the decisions to the situation at hand. It is not his right to change the decision or to re-try the issues in it. In conclusion, at least in my view, Dickson has no discretion on interpreting what the SCSC decision says.

However, Dickson does have discretion as to when he implements the decision. And, here is the biggest advantage the DSC lawyers have in this argument. Dickson is considering the case. He has not ruled on it. Then, the question becomes when does delay become denial? Dickson has delayed an implementation of the SCSC decision for 15 months. He has issued no decision at all in this time. The question the SCSC justices will now have to answer is whether 15 months is reasonable or excessive. If reasonable, they will deny writ and allow Dickson to continue on in the expectation that he will eventually issue an order. If excessive, that would amount to delay equal to denial of implementation. If the justices see it as excessive, they grant writ and order Dickson to act on implementation. This consideration, I suspect, may actually work to DSC's advantage in the high court which, after all, took 22 months to issue the Aug. 2 decision. On the other hand, TEC/TECSC has an advantage in that Dickson has only to implement a decision, not to resolve very difficult issues. Is 15 months enough time for Dickson to do his job? I think it is reasonable to say so.

3) On the matter of whether mandamus is proper before a judge has ruled, the SCSC justices did say in the Rock Hill case that the judge had not ruled. However, this was not, and is not now, the heart of the issue. The heart is whether a judge has discretion to apply a law differently. This was what cinched it for the justices in the Rock Hill case. Does Dickson have discretion in how to interpret the three orders of the SCSC in its Aug. 2 decision? The three majority opinions are clear. Where would any discretion be for a lower judge? I do not see any. It is his job to implement the decision, not interpret it.

4) Does a "remit" order preclude a lower court from re-trying the issues of the case? I am not a lawyer or legal expert, but it is my understanding that a "remit" is a direct order to implement a decision of the high court. If the SCSC justices had wanted the circuit court to resolve any issues, they would have issued a "remand" order. They did not. They issued a "remittitur" without comment.

5) I found it a bit surprising that the DSC lawyers would make assertions about central issues that have been resolved in the SCSC decision. In fact, four of the five justices of SCSC agreed that 28 (actually 29) of the 36 parishes in question had acceded to the Dennis Canon. The DSC lawyers said the parishes had not "expressly" acceded to the Dennis Canon. Accession is accession whether it was "expressly" or not. The justices said the 28 had acceded. If I am reading this right, I was a bit surprised that the DSC lawyers would question the justices' findings after the fact.

As for the diocese, a majority of the justices found that the Church diocese was the legitimate heir of the pre-schism diocese. This would mean that the secessionist diocese did not leave TEC intact. Four of the five justices found that the 2009 "All Saints" decision did not apply to the case at hand. Only the author of the decision, Toal, said it applied. The majority of the justices did not say that DSC withdrew from TEC with all of its property. So, again, if I am reading this correctly, I found it a bit surprising that the DSC lawyers would question the justices' findings after the decision.

In sum, as I see it, DSC has no case on discretion. Dickson has no discretion on interpreting the SCSC decision. It is his ministerial duty to implement the decision. However, I do see an opening for DSC on the question of timing. Dickson has not refused an implementation in the sense that he has issued a ruling denying implementation. His refusal is in the form of inaction. The SCSC justices may well decide that Dickson needs more time or that they need to wait until Dickson issues a ruling before considering a writ of mandamus.

WHAT NEXT?

My best guess is that TEC/TECCS will submit to SCSC a reply to DSC's response. If so, I expect they will address the issues raised above.

I do not know, but I wonder whether Judge Dickson will make a statement to the SCSC regarding a possible writ. I suppose he could explain to the justices why he has issued no ruling on the Aug. 2 decision in 15 months. On this, we will just have to wait and see.

WHAT IS LIKELY TO HAPPEN CONCERNING A WRIT OF  MANDAMUS?

Here is what I see as plausible outcomes of this contretemps:

1-Dickson could order an implementation of the SCSC Aug. 2 decision. This would render moot a writ. In this, he would save face by precluding any risk of an embarrassing, even humiliating, personal criticism from the state high court.

2-SCSC could deny TEC/TECSC's petition for a writ of mandamus. How they do this would make all the difference. If they do it without comment, they allow Dickson to continue on as he wishes. 

If they deny with comment, everything would depend on the comment. I suppose they could urge Dickson to implement the SCSC decision expeditiously, or even set a time frame, say 6 months. This denial would actually amount to a grant because it would put irresistible pressure on Dickson to act. I do not see how he would have any choice after that but to enact the decision.

3-SCSC could grant the petition for a writ. Again, this would depend on how they do it. If they do so without comment, Dickson will still be free to go on as he is although he would be under pressure to implement the decision eventually.

Again, if the justices make a comment in the grant, everything would depend on the comment. If it is vague or general, Dickson is still free to take his time. If there is a strong order, or time deadline, Dickson would have no choice but to implement the decision within the constraints. 


Finally, we must not lose sight of a tremendously important point. Under permanently established jurisprudence, a final decision of a supreme court is the law of the land. The same case cannot be re-litigated (the same issues but not the same case). The SCSC issued a clear-cut decision on Aug. 2, 2017. It is the law of the land. It is the duty of the lower court to carry out the law. I find it unimaginable that a state supreme court would not defend that bed-rock principle of the judicial system. I expect the South Carolina Supreme Court to see to it that its decisions are honored as they should be.

Bottom line---Just speaking for myself, I see a 60/40 chance the SCSC will grant a writ of mandamus. The big unknown is how they will word it. Even if SCSC denies a writ without comment, the best scenario for DSC, this whole episode will have put new pressure on Dickson to move along. So, a tactical loss for TEC on a writ could actually be a strategic victory on recovering the parish properties.  

THE DIOCESE OF SOUTH CAROLINA

AND THE SUBMISSION OF WOMEN

Our present lull period in the litigation gives us a convenient opportunity to reflect on the basic issues underlying the schism in South Carolina. It is easy to lose sight of the forest for all the trees. The schism happened for clear reasons; and this is a good time to remind ourselves of what those reasons were and what they mean to the two sides of this schism in the future.

As I tried to explain in my history of the schism, the underlying difference in the two sides was vertical versus horizontal religion. Vertical emphasizes relationship between one person and one God. Man is born corrupt; God is the opposite. The only way man can save himself from the eternal condemnation of his natural corruption is total submission to the all-powerful anthropomorphic being in outer space somewhere. This God demands total obedience. If man gives it, he gets eternal paradise. If man does not give it, he gets eternal punishment. In this understanding, God created all things, including the social order. It is not man's place to interfere with that. In Protestantism, vertical religion was strongly embedded in the fundamentalist/charismatic/pentecostal experiences. In the Episcopal Church, this was a small minority on the conservative edge. The verticalists opposed TEC's turn to the social gospel from the 1950's onward, particularly to its commitment to civil rights, equality for and inclusion of women in the church, and equality for and inclusion of homosexuals/transgendered in the church. To the verticalists, the purpose of religion is to save souls, not to meddle in the God-given order of society. Many verticalists left TEC and declared their views as "orthodox" (as opposed to the supposedly heretical moves of TEC). One name for this was "the Anglican Realignment" movement. Its goal was to destroy, or render inert, the Episcopal Church. 

Starting in the 1950's, TEC began turning to horizontal religion. This is the understanding that the relationship between an individual and God is the starting place, not the ending place. God created human beings in his own image to be his agents in the world. Their reason for being is to care for, protect, and enhance God's creation. This includes applying Christian understandings of ethics and morality to society, in short, to right the wrongs in this world. This is often called the social gospel. This is the stance TEC has taken for the last sixty-odd years. This has resulted in dramatic reforms internal in TEC for the promotion of blacks, women, and homosexuals to full equality and inclusion.

The people who led the schism in the Episcopal diocese of South Carolina I would describe as verticalists. They believed the Episcopal Church had gone off the rails on social issues. Their goal was the restore "orthodox" religion to this little part of Christ's body. They would return vertical to replace horizontal religion in the lowcountry of South Carolina. They have been at work on this ever since the schism.

The immediate cause of the schism in SC was equality for and inclusion of open homosexuals in the church. The leaders of DSC planned a diocesan secession from TEC after the General Convention of 2012 approved of liturgy for the blessing of same-sex unions. They secretly resolved to leave TEC at the first convenient moment which they no doubt strongly suspected was about to happen on the heels of the quit claim deeds controversy. The unsuspecting Presiding Bishop played right into their hands with a "restriction" on Bishop Lawrence, Oct. 15, 2012. Instant schism. 

The issue of rights for homosexuals was settled once and for all in DSC in 2015 when the diocese institutionalized condemnation of same-sex unions and required all officials to swear oaths of loyalty to the policies. This was a blanket policy forced on the entire diocese.

The issue of rights for women was not so forthright. But, make no mistake about it, the schism was also against equal rights for and inclusion of women in the life of the church. I have written about this earlier in my blog piece, of Nov. 1, 2017, "The Diocese of South Carolina and Discrimination against Women." Find it here . There, I described the historic discrimination against women in the diocese: few women clergy; no woman as rector of a large or medium parish; no woman ever to chair a major diocesan committee; women never in majority on any important diocesan committee; contemptuous treatment of the Presiding Bishop on her visit in 2008. The misogny was all too plain. One should also note that in his eleven years in power, Bishop Lawrence, who came from a diocese that had never ordained a woman to the priesthood, has ordained only two women priests, both spouses of diocesan clergy. 

So, what about the diocesan attitudes and policies about women since the schism? Submission. That is the key word the DSC is now pushing on women, particularly in its "Women's Ministries" programs. What caught my eye recently was a diocesan program led by the Rev. Shay Gaillard actually entitled, "Biblical Womanhood: Understanding the "S" Word---Submission." Find it here , scroll down to last item. One has to respect the frankness here. There is no attempt to disguise their beliefs: Women must submit to male aurthority.

In his course on submission, Gaillard gives us a handy written guide and a set of videos of his presentations. Again, I respect his forthrightness. He is out front with his bold assertions. He emphasizes two points: everyone should submit to (diocesan) authority; and women should submit to their husbands. Of course he hauls out St. Paul's old chestnut (Ephesians 5:24): "wives should submit in everything to their husbands." (I have been married for 52 years. I think it is a sure bet Saul/Paul was never married.)

Thus, while DSC has not institutionalized discrimination against women the way they have done against homosexuals, the pressure within the diocese to keep women down and "in their place" is more than obvious. Of course, one should recall that DSC's umbrella, the Anglican Church in North America, and its upper power, GAFCON, are dead set against women as bishops. In fact, in ACNA, women cannot be ordained as bishops. Constitutionally, ACNA is a top-heavy institution completely controlled by men. On this, I return to my point about vertical religion. DSC, ACNA, and GAFCON are all part of a fundamentalist counter-revolution in the Anglican world.

So, was TEC right to allow women into holy orders, to give them equality, and to bring them into full inclusion in the church? TEC, the Episcopal Church in South Carolina (and I) say absolutely yes. As far as St. Paul goes, he was trumped by the Genesis texts showing equality in creation, such as:

So God created mankind in his own image, in the image of God he created them; male and female he created them. (Genesis 1:27, NIV).

Bottom line---where you are in this schism depends on whether you see religion as ultimately vertical or horizontal. In my life, I have been immersed on one side and then the other. I have not a shred of doubt that vertical should be the starting point and horizontal should be the finishing place in our understanding and practice of Christianity. This is why the Episcopal Church is right. This is why the secessionist diocese is wrong. This is why the Church must, and will, win this very long and exhausting legal war. It is the right side. We must remember that, even in our weariness. TEC is fighting for the cause of making a better world for all of God's creation.

NOTES --- APRIL 8, 2019

It has been ten days since my last posting here. That is because there has been nothing to post, unless one wants to see yet more pictures of my garden. So, this is a good moment to stop and take stock of where we are in the schism.

Waiting. That is the name of the game in the litigation. In the six and a half years since the split of Oct. 2012, we have spent most of our time just waiting on the courts to act. That is where we are now, still waiting.

The strategies of the two sides are clear. The Church side wants implementation while the independent side employs deny and delay. Odds are in favor of the Church side, but the other party can drag this out for a long time to come. They cannot prevent the final settlement in the Church's favor, but they can delay the inevitable. Actually, this is not a bad strategy on their part because it gives them time to harden their identity as a separate religious entity in opposition to the supposedly heretical Episcopal Church. This is the tactic the DSC leaders have been using, to considerable effect, since the SCSC remitted their decision to the circuit court.

In the state courts, the Episcopal Church side has petitioned the South Carolina Supreme Court to order the circuit court to implement the SCSC decision of 2 August 2017. That decision ruled that 29 of the 36 parishes in question plus Camp St. Christopher belong to the Episcopal Church. Here, a year and a half since the SCSC decision, it has still not been put into effect. This is because the circuit judge, Edgar Dickson, sees the decision as unclear. In fact, it is very clear. The TEC/TECSC lawyers have grown tired of Dickson's 14-month dithering. They are taking the highly unusual step of asking the state high court to order Dickson to do his job.

The next step will be for the independent Diocese of South Carolina lawyers to file a counter-argument with the SCSC. That will probably occur this week, unless the lawyers get an extension. We can all take a safe guess at what the DSC lawyers will say: there are five separate opinions, there is no unity, the Aug 2 SCSC decision is unenforceable. Their obvious goal is to get the circuit court, or the SCSC, to re-try the case and render a decision favorable to DSC. 

In my view, it is highly unlikely the SCSC will rule in favor of DSC. The court gave a majority opinion on Aug. 2, 2017. To preserve the integrity and authority of the state high court, the SCSC must defend its earlier ruling. A bedrock principle of American jurisprudence is that the same case cannot be retried once a decision has been made and ordered. The same question(s) can be reconsidered, but not the same case. Bottom line---it is unimaginable that the SCSC would discard and reverse a final opinion that it has made and remitted to the lower court for implementation.

Thus, next we should get the DSC lawyers' counter-petition to the SCSC. Then, the justices of the SCSC will respond to TEC/TECSC's request for a Writ of Mandamus. I expect they will grant the Writ.

In the federal court, we are awaiting Judge Richard Gergel's action. Either he will hand down a judgment himself or will schedule a trial. He has set the date of May 1, 2019, or after, as the time for a trial. I would not be surprised if Gergel should make a ruling on his own, perhaps before then. Both sides have asked for such.

On another subject, the independent diocese recently held its annual meeting under the theme of "The Art of Neighboring." Seriously. Do these people have no sense of irony? Really. They caused a massive break in the church in South Carolina specifically to keep gay and lesbian people from being given equality and inclusion in the church and to keep women from having offices of authority in the church. This is good neighboring? This is loving your neighbor? I don't think so. Turns out, what they meant by "neighboring" was evangelism, or bringing new people into their churches. 

Now, "neighboring" in this context actually makes sense for DSC. As statistics show, the DSC experiment in schism has been a disaster. Their own statistics show that DSC has lost a third of its members since the schism of 2012. Here are the communicant numbers as reported in the DSC annual journals:  

2011 --- 21,993 communicants

2013 --- 17,798      "

2014 --- 16,351      "

2015 --- 15,556      "

2016 --- 14,694      "

Note that DSC has lost members every year since the schism. Overall, the diocese has lost nearly half its members since Mark Lawrence became bishop in 2008, from 27,670 communicants in 2008 to 14,694 in 2016. DSC has refused to release any membership statistics since 2016. I think we can all figure out the reason for that.

Financially, DSC is also in trouble. The litigation is bankrupting them. In 2018, the DSC budget held a deficit of $495,289 out of $2,158,866. In 2019, the DSC budget listed "Legal fees" at $788,520 out of a budget of $2,551,000. 

The long-term viability of the independent diocese is very much in question. Once the dust settles in the courts, it will have six parishes, perhaps a few missions, and lots of debt. It will lose the bulk of the parishes it now occupies as well as the entity of the pre-schism diocese that it also now occupies. If DSC is having troubles surviving now, just wait until the state and federal court judges finally rule. My best guess is that the remnant of the breakaway diocese will merge into the ACNA Diocese of the Carolinas, now under Bishop Steve Wood, rector of St. Andrew's of Mt. Pleasant. If so, the experiment of the schism in South Carolina will have been proved to be a crushing failure. But then, one must bear in mind that the original aim of the "Anglican Realignment" movement in the 1990's was to destroy or greatly diminish the Episcopal Church as a "liberal" force in American life. In that regard, we will have to give the DSC schismatics a certain amount of credit. The damage they will have done in South Carolina, one of the nine original dioceses, will have been remarkable. 

If the communicants of DSC want to know the real art of neighboring, they should read Presiding Bishop Michael Curry's book, The Power of Love. "Love is the way. Love is the only way" he writes. Embracing our neighbors as ourselves means no qualification; no exclusion of gays; no subjugation of women. This is the Jesus Movement.

Moreover, interestingly enough, we have a presidential candidate who personifies this movement. He is Pete Buttigieg, the 37-year-old mayor of South Bend, Indiana. When he announced, he was such a dark horse that everyone said, "Pete who?" Now, he is a phenom drawing huge crowds and a great deal of interest, even in South Carolina. He is definitely one to watch in the crowded field of candidates. 

Pete Buttigieg describes himself as a "devout Episcopalian." He was reared as a Roman Catholic and was drawn to Anglicanism while studying at Oxford. He is overtly religious. He also happens to be married to a man; and, this makes him the first openly homosexual person to be a serious candidate for president of the United States. He has testified that his sexuality has brought him closer to God. Find numerous clips on YouTube in which Buttigieg discusses his faith. If the people of DSC want to know about the art of neighboring, I suggest they listen to what Buttigieg has to say. Too, everyone should read conservative NY Times columnist David Brooks's April 1 opinion piece. Find it here .

Meanwhile, I hope you are enjoying this glorious springtime. I will post only one new picture of my garden. Many plants are in full bloom now, but none begins to rival the present star of the garden, "Snowball," which is about to engulf the sabal minor. This Snowball is full grown at about 15 feet. On far left is a dwarf apple tree in full bloom. 

In church yesterday, we sang hymn 398, "I Sing the Almighty Power of God," words of Isaac Watts. It has this line:

There's not a plant or flower below, but makes thy glories known.

At the moment, none is doing this better in my garden than Viburnum plicatum, aka Japanese Snowball.