THE STATUS OF THE SCHISM, 

23 OCTOBER

Two days ago, the Church lawyer sent a second letter to Judge Edgar Dickson asking, once again, for a hearing on the Church's motion for implementation of the South Carolina Supreme Court decision on August 2, 2017. As we await a response, or lack thereof, from the judge, we have a convenient time to stop and assess where the schism stands now and what one might expect in the future.

In sum, the Episcopal Church is winning the war and losing the peace. Let me explain.

The legal war, which started January 4, 2013, was basically about two large issues: the possession of the parishes and the ownership of the entity of the pre-schism diocese. The parishes were in the state court while the diocese was in the federal court. The Episcopal Church won both of these. On August 2, 2017, the SCSC recognized Episcopal Church ownership of the bulk of the parishes (29 of the 36 in question). On September 19, 2019, the federal court in Charleston recognized Episcopal Church ownership of the historic diocese. The Episcopal Church has won the war.

The Episcopal Church has not won the peace. Quite the opposite. The Church has not regained one single item of property or other asset from the court decisions. Concerning the diocesan entity, the breakaways conformed to the judge's injunction against their using the names and emblems of the old diocese, but they refused to hand over any asset of the pre-schism diocese. The Anglican bishop continues to live in the Episcopal Church bishop's residence. The Anglican bishop and his aides continue to inhabit the Episcopal Church diocesan headquarters. The Anglican diocese continues to hold the assets of the old diocese. Nothing has changed in this regard.

As for the 29 parishes, the Anglican side refuses to recognize the SCSC decision. They still claim it is too conflicted and ambiguous to be implemented. They are in court asking the judge to disregard the SCSC decision and decide himself who owns the 29 parishes. So, since they have not even recognized the SCSC orders on the last page of the decision, they certainly have not entertained the idea of turning over any parish to the Episcopal Church. I suspect their ultimate goal is to get the matter back to the SCSC in hopes of overturning the SCSC decision of August 2, 2017. The Anglican strategy is deny and delay. Given the glacial pace of the courts, they can string this out for years.

So, the Anglicans still hold the assets of the old diocese and the 29 parishes. Apparently they intend to keep them as long as possible, which could be for years, perhaps many years. The problem for the Episcopal Church side is how to gain actual possession of the properties of the old diocese and the 29 parishes. This is the situation the Church side is in right now.

If the strategy of the Anglican side is deny and delay, the strategy of the Episcopal side is to use the courts to regain the assets of the old diocese and the 29 parishes. And, there is the hangup.

The SCSC sent the Remittitur of its Aug. 2 decision back to the court of origin, the first circuit court of SC. That court assigned Judge Edgar Dickson to handle the case. He has had this matter before him for 21 months. In that time he has made two decisions of consequence, to implement the first of the three orders of the SCSC (independence of 8 parish entities) and to deny the Episcopal side's motion to dismiss the Betterments suit. He has ignored the second and third orders in the SCSC decision, return of the 29 to TEC and return of Camp St. Christopher to EDSC.

The problem for the Church lawyers is how to get the judge to implement the second and third parts of the SCSC decision. With a strengthened hand of the federal court order (Sept. 19, 2019), that recognized the SCSC decision, the lawyers went back to Dickson on Oct. 4 asking for a hearing on implementation. No response. On Oct. 21, they went back to Dickson and, once again, asked for a hearing. This is where we stand now, waiting on a response from Dickson.

Dickson did not respond to the first letter. There is no reason to think he will respond to the second. If he does not respond, what then?

Judge Dickson does not have to respond. In fact, at age 69, he can simply do nothing until he retires from the bench leaving the whole mess on his successor's desk. That is certainly one choice. In effect, this would be a coup for the Anglican side in that it would buy them a great deal of time.

One choice the Church lawyers have is to go back to the SCSC for a writ of mandamus ordering Dickson to implement the SCSC decision of Aug. 2, 2017. Remember, they have already tried this and the SCSC refused. If they turned it down before, why would not they turn it down again? Things have changed, most notably the federal judge's strong endorsement of the contents of the SCSC decision. Also, there is a documented pattern of the judge refusing to hold hearing on implementing the SCSC decision. Things have changed, but it remains to be seen if they have changed enough to make the SCSC change its mind on a writ. Going back to the SCSC for a writ is a risky maneuver. If the court refuses, Dickson will have a green light to sit on this whole business indefinitely. If the court agrees, it will have to be specific to the judge on how he is to proceed. If they leave it vague, he will still be free to interpret it as he wishes.

I suppose another choice is to evict the occupants from the properties that belong to the Episcopal Church. As one can see in the letters to the editor here, there is quite a support for this. It is tempting to do it, but really it is not desirable. This should be only the last ditch effort after everything else has failed (and one should not rule this out). To get the eviction of an illegal occupant, the Church side would have to go to a magistrate and get an order. This could be a problem if the magistrate believes the issue remains alive in the court. Even if the Church got a magistrate's order, its enactment would be dramatically damaging to the Church's reputation. Public opinion would turn heavily against the Church on this.

So, the strategy and tactics of the Anglican side are clear and effective, at least for the moment. Having lost the war, they are winning the peace. This is quite an accomplishment if one thinks about it. We have to admire the Anglican lawyers' ability to snatch victory from the jaws of defeat.

The strategy and tactics of the Episcopal side are not so clear. Apparently they are to get the courts to order the handover of the properties and other assets. Whatever they are, they are not working, at least at the moment. Having won the war, the Episcopal Church side is losing the peace. Moreover, I see nothing on the horizon that promises to alter this in the near term.

This situation is not necessarily the fault of the Church lawyers. They are battling against a prevailing local culture that remains decidedly socially conservative. And, when we get right down to it, this whole fight between the two dioceses is fundamentally about social conventions. It is about whether we give equality and inclusion to all people regardless of race, gender, and sexual orientation. If the Church is having a hard time winning the peace in South Carolina, it is because society does not want it to win the peace. Thus, the daunting challenge for the Church lawyers is how to win the peace in this sort of socio-cultural milieu.

Judging from the emails I have received, I would say many church people out there are frustrated, disappointed, even angry at the Church's failure to win the peace. Demoralization is a potential cancer detrimental to the health of the church diocese. While such feelings are understandable, they are really benefiting the side fighting to destroy or diminish the Episcopal Church in lower South Carolina. If the Episcopalians lose heart, their opponents win, again. This would be self-defeating.

I still believe, after all of this, and after all these years, what I have always believed, that the right will prevail and that right is the respect for the dignity and worth of all of God's children. And so the right has to keep on the fight, hard and long as it might be, because it is the right and it will prevail in God's time.