Thursday, September 9, 2021



On February 26, 2021, I posted a piece entitled "A Status Report on the Schisms and the Courts." As we await word from the South Carolina Supreme Court, it is appropriate to revisit the legal histories of the five schisms in the Episcopal Church. I am repeating that blog piece below.

One point that brings this back is a recent article in "Juicy Ecumenicism" holding that the Episcopal Church has spent $52 million on the lawsuits coming out of the five schisms. The five schisms were from 2007 to 2012: San Joaquin, Pittsburgh, Quincy, Fort Worth, and South Carolina. 

In the first place, anything in "Juicy Ecumenicism" should be regarded with suspicion. It is a publication of The Institute on Religion and Democracy. Find an article about IRD here . The IRD was founded in 1981 as a right-wing PAC. It soon began to target the mainline Protestant denominations which it viewed as dangerously liberal, particularly for their stands for rights and inclusion of homosexuals and women in the life of the church. In 1996, the president of IRD set up the American Anglican Council specifically aimed at destroying or severely diminishing the Episcopal Church in order to end its "liberal" influence in American society, i.e. equal rights for gays and women. IRD and ACC were not grassroots organizations. They were funded from the deep pockets of various right-wing sources. Thus "Juicy Ecumenicism" should be taken with a grain of salt. It has an agenda.

Anyway, the article said that the Episcopal Church had spent $52 million dollars on the lawsuits arising from the five schisms. It did not venture to say how much the schismatic groups had spent on their legal costs.

Specific figures are impossible to find. The Episcopal Church budget is most forthcoming. However, no diocese has revealed details of all of their legal expenses. We do not know how much has been spent on the litigation.

No doubt, South Carolina has been the most expensive of the legal cases. There, the breakaway organization sued the Episcopal Church for possession of the pre-schism diocese. At the same time, it also became the only one of the five cases in which the local parishes joined individually in the suit. Thus, the people in the secessionist group were faced with two legal expenses, diocesan and parochial. Both the diocese and the parish hired lawyers and took legal actions. Lately, the breakaway diocese admitted spending half a million dollars a year on legal costs. I expect we can double that counting in the individual parishes. If so, the breakaways have spent a million dollars a year on the legal quest against the Episcopal Church. Eight years would equal $8 million. If we say the Episcopal Church side matched the breakaway diocese, we would add $4m. This would mean the two sides in SC have spent $12 million on the lawsuits. I expect that is a fair ballpark figure.

Of course, this vast expenditure did not have to be. In the first place, the reactionary contingent did not have to leave the Episcopal Church. In the second place, the breakaway group refused a compromise settlement in June of 2015. At the time, the Episcopal Church offered to give the breakaways the local parishes in return for the legal rights of the old diocese. The breakaway side flatly refused. I wonder how much money the breakaways have spent since June of 2015 only to see both the state supreme court and the federal court rule in favor of the Episcopal Church.

September is here. That means the South Carolina Supreme Court will be returning to its full schedule of work after its summer lull. Sooner or later, and no one can know which, the SCSC justices will have to rule on the Church's appeal of Judge Dickson's order that handed over all to the breakaways in direct violation of the 2017 SCSC decision. This is where we are now: waiting.

Here is my blog posting of Feb. 26, 2021 concerning the status of the lawsuits:   



The settlement of the Fort Worth cases provides a convenient moment to summarize the litigation of the five schisms in the Episcopal Church. From 2007 to 2012, the majorities of the clergy and laity of five dioceses of the Episcopal Church left the Church in opposition to its recent social reforms, particularly equality for and inclusion of open, partnered gay clergy, and equality for and inclusion of women in offices of authority. The affirmation of Bishop Robinson and the election of Katharine Jefferts Schori as presiding bishop were specific examples of the reforms that the dissidents refused to accept.

All five schisms went into litigation. Four of them have been settled in court. Only one, South Carolina, is still to be resolved finally. The legal issues boiled down to two main points: whether the local secessionists could take the entity of the diocese with them, and whether the schismatics could retain legal possession of the local church properties. The Constitution and Canons of the Episcopal Church contained provisions that pertained to both of these issues. Just how strong they were in the view of the law was the question at hand. This was what the courts had to figure out. TEC had incorporated the Dennis Canon in 1979. It declared that all local church properties were held in trust for the Episcopal Church and its local diocese and that if a congregation left TEC the trust would effectuate transfer of the property to the Episcopal Church. So, even if a parish held the deed to the property, TEC had trust control over the property.

Since four of the schisms have been settled in court, what is the score card? Who won? Well,  the answer is a draw. Two cases went to the Episcopal Church and two went to the local secessionists. 

The two that went to the Episcopal Church were Pittsburgh and San Joaquin. However, these were resolved for different reasons. Pittsburgh was a unique case owing to a "Stipulation" that Bishop Duncan made before the schism, in 2005, recognizing that the property held and administered by the diocese would remain under the diocese. In 2010, the judge in the Court of Common Pleas, Allegheny County, following the Stipulation, ordered the breakaway side to turn over all assets to the Episcopal Church diocese. The state appeals court upheld the lower court. The Pennsylvania supreme court refused to take the case.

The case of San Joaquin followed a more conventional path of litigation in the courts. The two sides went to trial in 2014 in the Superior Court, Fresno County. The judge rendered a decision that turned out to be the strongest defense of the Episcopal Church position in any of the five schisms. He declared that the C and C of TEC clearly required conformity of clergy and dioceses. Clergy had no right to act contrary to the C and C and dioceses could not leave the church. He ordered the property to be handed over to the Episcopal Church diocese. The appeals court unanimously affirmed the lower court. The breakaways then went to the California supreme court but that court refused to take the case laving the lower court decision as final.

The two that went against the Episcopal Church were Quincy and Fort Worth. The reasonings of the courts there were similar but not exactly the same. In Quincy, the opinion of the court was the exact opposite of the California courts. Following a trial (Alan Runyan was one of the lawyers for the breakaways), the circuit court judge in Adams County, Illinois, ruled that TEC's C and C did not explicitly create a hierarchy, did not have authority over the dioceses, did not prevent a diocese from leaving the Church, and did not create an enforceable trust in the Dennis Canon. The court followed a very narrow and strict interpretation of state law. In short, the judge recognized the full rights and ownership of the secessionist entity. The appeals court affirmed the lower court. The TEC side went to the Illinois supreme court but that court refused to take the case leaving the circuit court decision as final. This was a sweeping victory for the schismatics.

Ironically, of all five schisms, the one where the Episcopal Church had the strongest position was the one where the Church suffered its strongest defeat. Fort Worth should have been an open and shut case in favor of TEC. It did not turn out that way. Why? The peculiar situation of the Texas courts and the peculiar laws of Texas allowed the secessionists to sweep the field.

The Diocese of Fort Worth had been created in 1983 by division. To enter TEC it had to give explicit accession to TEC's C and C. The Dennis Canon had been added to the C and C four years earlier. This meant at its corporate creation, the diocese explicitly adhered to all the C and C of TEC, including the Dennis Canon. This might have given iron-clad power of TEC over the diocese of Ft. Worth.

The history of the litigation in Texas is as peculiar as the final settlement. It started out in the local court, the 141st District Court. There, the judge ruled all in favor of the Episcopal Church on the basis that the Church was hierarchical. He ordered the turn over of all of the assets and properties of the old diocese to the Church side. The breakaway side then appealed directly to the Texas supreme court. That court ruled that the secessionists had followed state law to withdraw from TEC. Moreover, the court declared that the Dennis Canon could not be enforced because under Texas law a trust could be revoked unless the trust has an explicit provision that it could not be revoked. The Dennis Canon had no such provision, never mind that the nature of a trust should be inherent legally. The state supreme court sent the case back to the lower court with direction to find in favor of the breakways. The district court judge did as he was told but included in his order a virtual demand for appeal.

The TEC side did appeal the district court order to the appeals court. The appeals court justices took two years to compose a masterpiece of jurisprudence. Find my commentary on this here . Find the appeals court decision here . The appeals court decision is a 178-page book carefully and thoroughly spelling out the reasons for its conclusions. In essence, the court ruled that the Episcopal Church is hierarchical and therefore entitled to decide the governance of the diocese. Thus, the Church-backed diocese must prevail. The justices went on to say that the Dennis Canon did not impose a trust since state law required the deed holder to set up a trust and this had not happened. However, the Dennis Canon was irrelevant in view of the fact that the diocese remained under Episcopal Church authority. The properties remained under control of the Episcopal Church regardless of the state law on trusts.

Thus, the Episcopal Church won sweeping victories in district and appeals court, even after the state supreme court had intervened to order the district court to reverse itself. The Texas supreme court was not to be pushed aside, however. The secessionists appealed directly to the state high court which issued a thin, 30-page decision on May 22, 2020. Find my commentary on this here . Find the court's decision here . It was this decision that TEC took to the U.S. Supreme Court which denied cert on Feb. 22, 2021. The TX supreme court decision now stands as the final law of the case.

As opposed to the hefty, thorough tome from the appeals court, the thin, 30 page paper from the Texas Supreme Court was anemic with virtually no substantiating jurisprudence to support its assertions. The decision turned out to be a bundle of contradictions but revolved around the essential charge the justices made the first time, that is, the Dennis Canon could not be enforced because it did not include an explicit provision that it could not be revoked. This, of course, was a thin reed, but it was the one the court ultimately clung to in order to justify their awarding all to the breakaways. In spite of the weakness of their explanation, the authority of the state supreme court prevailed and that decision took precedence over the substantial jurisprudence of the lower courts. 

Thus, Fort Worth, where the Episcopal Church had the strongest case, turned out to be the one where the secessionists won their most sweeping victory. This was because one court, the state supreme court, overruled all of the decisions of the lower courts, and did so on a technicality. One should bear in mind that Texas is one of those states where all justices of the state supreme court are elected at large in the state. Hence, conservative Republicans have had a monopoly on the Texas Supreme Court for two decades. That court is known to be a bastion of conservatism. They certainly showed their attitudes in this case.

With the score of 2 to 2, we arrive at the fifth case, the only one yet to be finally settled, South Carolina. In some ways, the case is similar to the Texas experience, but in more important ways it is upside down. In SC, the local court ruled entirely for the breakaways, giving them the entity of the diocese and the local properties. The TEC side appealed to the South Carolina Supreme Court that essentially reversed the lower court, and recognized Episcopal Church ownership of 29 of the 36 local properties in question plus Camp St. Christopher. The SCSC then remitted its decision back to the lower court for implementation. In this case, as opposed to what happened in Texas, the lower judge refused the order from the SCSC. Instead, he issued a new order reversing the SCSC decision. In Texas, the lower judge had carried out the state supreme court order; and it was this decision that was overturned by the appeals court. So, in SC the lower courts sided completely with the breakaways while the state supreme court favored the Church side, opposite what happened in Texas. The Church side appealed the lower court order to the SC Supreme Court asking the court to overrule the lower judge and enforce the SCSC decision of 2017. This is where the matter stands today.

As with Texas, the heart of the matter in SC is the ownership of the properties. The SCSC ruled that 29 parishes had acceded to the Dennis Canon. The lower courts ruled that no parish had acceded to the Dennis Canon.

Meanwhile, SC was the only one of the five schisms that moved along two avenues of litigation, state and federal courts. In 2013, a few months after the schism, the Church side went to the federal district court for enforcement of the Lanham Act that protected federally registered trademarks. In essence, it asked the federal court to recognize the Church diocese as the legal heir of the pre-schism diocese. In 2019, the district court did just that. It said the Church diocese was the only legal and legitimate heir of the old diocese and forbade the breakaway side from pretending to be the Episcopal diocese. This decision is now on appeal with the federal appeals court in Richmond. However, the decision is in effect since both district and appeals court denied the breakways' request for a stay. (However, the case itself is on stay in the appeals court, pending a decision of the SCSC.)

No one knows, and no one should predict, what the SCSC will do about the appeal now before it. Common sense says they should defend the SCSC decision of 2017 and overrule the nullification attempt of the lower court. In my view, it will depend on whether the state high court justices interpret the case before them as one of jurisprudence or of the culture war. If strictly jurisprudence, they would have to defend the SCSC decision. If they allowed a lower court to overrule the state supreme court, they would upend the entire state judicial system which is a hierarchy. This would usher in nothing but chaos and never ending litigation in the state courts. This would be a mind-boggling outcome. If, on the other hand, they are driven mostly by the culture war, they may find a way to give the properties to the breakaway side although this would seriously weaken the authority of the SC Supreme Court by overthrowing an earlier decision. The point that might make one think they might go down this path is their repeated refusal to order the lower court to enforce the SCSC decision after they ordered a Remittitur.

Thus, SC remains the wild card in this long legal war. Now that both sides have submitted their initial briefs, the SCSC should be moving soon to a decision. The court may hold a hearing or they may go directly to a written decision. Either way, it is reasonable to hope for resolution in this calendar year. Who will be the winner, 3-2, the Episcopal Church or the schismatics? We shall see.

In sum, the litigation revolves around two main points, first, who owns the properties, and second, who owns the pre-schism diocese. The prevailing factor in these is whether the Episcopal Church is an hierarchical organization. The consensus of opinion is that it is indeed hierarchical. Even the Texas Supreme Court agreed. If it is an hierarchy, then neither the dioceses nor the clergy could be independent of the higher authority. The General Convention governs the Episcopal Church and its decisions are contained in the Constitution and Canons. The Dennis Canon is part and parcel of this.

To put all of this in a more meaningful perspective, we have to go back to the origins of the schisms. They were parts of the greater culture war going on in America. For better or for worse (better, I think) the Episcopal Church threw in its lot early on with the side of evolving democracy, that is, the equality and inclusion of all people. TEC became a champion of human rights. A minority of the Church, however, balked at this and insisted the church not grant equality and inclusion of certain people, namely women and homosexuals. Hence, the five schisms. 

The courts have been the only way we have to resolve the questions of legal rights and property ownership. However, the courts are not perfect and there is really no such thing as completely impartial justice. Judges are human beings, like the rest of us, who have viewpoints and opinions of their own. Even though they may try hard to be fair, they see the law through their own individual lenses. And so, we have polar opposite outcomes in courts across America, 2 for the Church and 2 for the secessionists. Imperfect as they are, the courts are all we have to bring the scandalous war between the two sets of former friends to an end. The justices of the SCSC are subject to the same humanity as the rest of us. One side will win and one side will lose in SC. Whatever the outcome, this destructive madness of Christians suing Christians must come to an end. We must live with what we get. Above all, in the end, we must behave as the Christians we claim to be or else we have no right to the name we bear.