A HARBINGER OF THINGS TO COME?

Yesterday the South Carolina Supreme Court spoke, this time on mask mandates in school. The question before us now: Is the latest SCSC ruling a sign of things to come on the Episcopal Church case before the court? Are there tea leaves here to be read? 

Find a news article about the SCSC ruling on masks here . 

In short, the SCSC ruled yesterday that a municipality had no right to overrule a state law. The City of Columbia had mandated that face masks be worn in its public schools. A recent law passed by the General Assembly said no school district could use "any state funds to require that its students and/or employees wear a facemask at any of its educational facilities." Columbia declared it would use local and not state funds for the mandate. So, the question was: Did Columbia violate state law if it used its own funds to carry out the mandate?

Everyone knows that COVID-19 is a major political issue in the United States and has been all along. Many conservatives vehemently oppose both vaccinations and mitigation measures as wearing face coverings in public. Whether school children must wear masks in school has turned into a fight (sometimes literally) in many districts. It is most unfortunate that the nation has allowed a common health emergency to divide us even more. Many southern states have passed laws banning various mitigation efforts, as local mandates on the wearing of masks in school. Something as simple and innocuous as a face mask has become an enormous political issue in South Carolina and many other states.

The opinion of the SCSC was unanimous that a city could not overrule a state law. Justice Kittredge wrote for the court that even if Columbia paid for the mask mandate, the mandate could not be enforced without involving school personnel thereby infringing on state funds and violating the state law. Kittredge's charge was a supposition, logical though it might have been. It was a prediction and not a fact. It seems to me he could just as well have judged that the city could require masks as long as it enforced it with its own, and not state, funds. The court concluded that the city could not do what the city claimed it could do. In my view, this was partiality to the anti-mask party; and the highly unusual gratuitous defense Kittredge and James took in the written decision was clear evidence of such.  

Kittredge went on at length that the court was not taking sides in the mask debate while taking sides in the mask debate. This is similar to the U.S. Supreme Court's recent ruling that rejected a block on the new Texas anti-abortion law while saying it was not taking a stand on the law. Such arguments from the lofty justices are just as disingenuous in Columbia as in Washington. A court's opinions on any case is of itself taking a stand.

Apparently dissatisfied with Kittredge's rather lengthy self-conscious rationalization of the court's decision, Justice James took the unusual step of adding his own wordy and highly defensive claim of neutrality. His assertion of the court's impartiality on the mask debate was even more insistent than Kittredge's. Me thinks he doth protest too much, to paraphrase a famous quote. Why would supposedly impartial judges need to tell us they were impartial?

Although all fives justices agreed the city had to obey state law, they divided three to two on the politicization of the issue. Justice Hearn, backed by Chief Justice Beatty, held that "the majority characterizes this conflict as a debate between parental choice and government mandates." She went on, this "puts an unnecessary political gloss on the issue before the court." It seemed to me she was saying the court was making a scarcely veiled defense of the anti-maskers and attack on the maskers. This would be taking sides in spite of conspicuously insistent claims of judicial impartiality. 

There is the problem of the day:  Was the SC Supreme Court siding with one political force against another, albeit under the guise of neutrality in enforcing state over municipal law? Hearn and Beatty thought so. 

This is the issue that must concern us today: How will this SCSC approach the Episcopal Church's appeal of Judge Dickson's order awarding all to the breakaway entity? Will it take this as a political issue, as Hearn said they did on masks, or a purely legal issue? 

The difference here is monumental and will determine the legal resolution of the schism. The SCSC is about to decide who winds up with the bulk of the local properties. If the justices see the church case basically as a political issue, this conservative panel will side with the conservative party in this dispute. That means they would allow Dickson's order to stand. This would finally leave the 29 parishes in question and the Camp in the hands of the Anglican Diocese. The Anglican Diocese is committed to blocking equal rights and inclusion of women, non-celibate gays, and the transgendered in the life of the church. It is the "conservative" side in this dispute. The Episcopal Church, on the other hand, is committed to equality for and inclusion of women, gays, and the transgendered in the life of the church. 

However, if the justices ultimately see the case as one of legal integrity, they would uphold the 2017 SCSC decision that awarded the 29 parishes and the Camp to the Episcopal Church. They would redirect the circuit court to implement this decision. If they allow a circuit judge to overrule a state supreme court decision, they would throw the entire SC judicial system into chaos. They would establish the precedent that a lower court could overrule the state supreme court. The ramifications of this would be mind-boggling.  

So, it boils down to whether the South Carolina Supreme Court sees the church case as one of the culture war or of the rule of law. The two are not at all the same, in fact, contrary in this case.

One major complication at hand is that only four justices will decide this case (unless a fifth "acting justice" has been quietly brought in). Justice Hearn has recused herself. The specific issue on the desk is the appeal of Dickson's decision. With four justices to decide, a two-to-two draw will leave the Dickson order intact. The Anglican side will win if it gains two or more of the four votes. On the other hand, the Episcopal side must get three or more votes to overturn Dickson. 

At this point, I would say the Episcopal side has the harder challenge. And, the SCSC's new ruling on the mask mandate  may well indicate that the court is ready to wade into the church fight on the conservative side, even as they protest loudly that they are scrupulously impartial. If they do, they will have to go through complicated contortions to defend their revocation of a final SC supreme court decision. I, for one, cannot imagine how they could successfully do that.