HAPPY CHRISTMAS, 2021
"Glory to God in the highest and on earth peace, good will toward men."
My warmest wish is that you find new hope and joy this Christmas. The darkness of the troubles of life all around us cannot extinguish the light of God's love for each of us. Peace.
NOTES, 22 DECEMBER 2021
Greetings, blog reader, on Wednesday, December 22, 2021. My best wishes to you as we await the celebration of the Nativity of Our Lord.
At this moment in our lives, we are besieged with woes and burdened with fears. There is no need to go through a litany of the troubles of the day. We all know, all too well, what they are. We all wonder anxiously what tomorrow will bring. Will it be even worse that what we have already?
To celebrate light and life in what is now late December has been a natural inclination among human beings from before records began. All prehistoric and early ancient societies worshiped the sun in some way. It was the primary deity. People knew instinctively it was the source of life on earth.
People in the northern hemisphere could see the sun declining in the sky in autumn. Prehistoric people commonly believed evil forces were trying to devour the sun in order to extinguish life on earth. They could see too, on what is now 21 December, that the sun reached its low point and then began to revive, or rise again, in the sky therefore vanquishing evil. Life defeated death, year after year. This brought hope for a better life.
By the time of the Roman Empire, Eastern Mystery Religions had become popular throughout the western world. The most popular one among the soldiers of the Roman army was the Cult of Mithras which celebrated the birth of its mythical deity on present-day December 25, soon after the new "birth" of the sun. No one knows how December 25 became the Christians' day of birth (the Gospels did not give a date) but late December was the common time for such celebrations of birth in the ancient world.
The winter solstice was yesterday, 21 December, when the sun reached its low point in the sky. Starting today, it will "rise" again. We now know what prehistoric and ancient peoples did not know, that it would rise again naturally. Yet, crowds of people descended on Stonehenge, in England, to celebrate the day, as the builders of that phenomenal homage to the sun did thousands of years ago. I celebrate too, in my own little way.
In just three days we will celebrate another new life, that of our Lord. It will be Christmas Day, 2021. Christians around the world will be comforted by the new life, once again, as they have been for nearly two thousand years. God knows, we need it now.
What would Christmas be without poinsettias? Did you know they are named for Joel Poinsett, the South Carolinian who was minister to Mexico? An avid botanist, he introduced the "Christmas" plant to the U.S. in the 1830's. He died in 1851 and is buried in the Holy Cross church graveyard, Stateburg SC. This gardener hopes someone will go by Poinsett's grave this Christmas and leave a poinsettia.
My point of the day is that whatever is going on in our lives, we should celebrate light and life today. This is the time that was given to us for the living of our lives. It is precious beyond measure. We must not be vanquished by the natural and man-made troubles that beset us, seemingly without end. Troubles come and go, but just as the sun rebounds in the sky, Christmas comes every year bringing with it the joy of a new day and the certainty of God's love for us as it is displayed spectacularly in the wonders of creation all around us. Peace.
NOTES, 16 DECEMBER 2021
Greetings blog reader, on Thursday, December 16, 2021. It is time to check in on the issues we have been following for a long time.
PANDEMIC. Just when we thought we had turned the corner to see the decline of the COVID-19 pandemic, here it is surging yet again. New, more potent variants and winter weather seem to be causing a fourth surge. Numbers are ticking up almost everywhere. It is still too early to jump to any conclusions about a surge. However, the warning signs are there.
The United States remains the epicenter as it has been all along, almost two years now. Some 800,000 Americans have died in this pandemic, making it historic (in a bad way). The national FIGURES for the past two weeks are alarming. Cases are up 40%, hospitalizations 21%, and deaths 34%. This is mainly in the northeast and mid-west. This is true even though 61% of Americans are now fully vaccinated.
Compared with the national numbers, our southern states are not doing well. In SOUTH CAROLINA , cases are up in the last two weeks by 72%, hospitalizations by 28%, and deaths 21%. Approximately 20% of the population of SC has contracted the coronavirus. The total number of deaths in SC stands at 14,431. The percentage of fully vaccinated in SC stands at 52.
Likewise, ALABAMA is showing worrying signs in the last two weeks. There cases arose 87%, hospitalizations 14%, and deaths 146%. As in SC, approximately 20% of the population has been infected with the virus. The total deaths in AL amount to 16,304. The percentage of fully vaccinated in AL stands at 47%, one of the lowest in the nation.
Unfortunately, the whole U.S. may be in the early stage of a fourth great surge of this pandemic. Time will tell, but right now the telling is not good. I do not know about you, but I have had my booster shot and even thought it left me with debilitating light-headedness for a week, the temporary unpleasantness was well worth it to get the protection the vaccine offers.
THE ADVENT. Nothing new to report here after the brouhaha last week over the ordination of a non-celibate homosexual in the Cathedral Church of the Advent, in Birmingham. This caused quite a stir in the parish and beyond. I do not know as a fact, but I believe it may be true that after the news broke, the bishop met with the leadership of The Advent to smooth over things. Whatever happened, matters have calmed down, at least in public and I have nothing new to add except to say that the Rev. Craig Smalley, the interim dean is working hard to keep the ship on an even keel. This is quite a challenge considering the circumstances.
THE SCHISM IN SC. It has been a week and a day now since the hearing and I am still completely flabbergasted and disoriented by what happened in the hearing of Dec. 8. I come from an academic background where people deal with empirical evidence and sort it into logical sequences to arrive at reasonable conclusions. So, I am having a lot of trouble trying to process what the South Carolina Supreme Court has done, and particularly the part of the Chief Justice. It did not agree on empirical evidence. It has made nothing logical. And, it has refused to say the conclusion it had reached was reasonable. So, I am as lost about all this as anyone.
I have wracked my aging brain to try to understand why the Chief Justice apparently made a stunning volte-face from his written opinion of 2017. I have gotten nowhere. It sounded to me as if he recanted everything he said in the 2017 paper and praised Judge Dickson, to boot, for overturning the 2017 decision ("He did everything we expected him to do.") Unless I am completely misunderstanding what the Chief Justice said in last week's hearing, he is now repudiating his 2017 written decision, and for no discernible reason.
The Chief apologized at the end of the hearing for the "confusion" the court had left. Well, what he had just said in the hearing greatly added to that confusion. And, reading other blogs, I would say that is a universal opinion.
Where does this leave us? Nowhere. We shall just have to wait for the court's written decision to know what the five justices have decided. I am hoping that between now and then they find empirical evidence, use logical sequence, and arrive at reasonable conclusions. Is that too much to hope for in the state's highest court? I do not think so.
Meanwhile, life goes on. It is mid-December, but one would not know it today when it is sunny and in the mid-70's at my house. Even so, my garden is in its winter mode. Other than the glorious camellias, there are some plants that bloom in winter. These are some pictures of my garden made today:
Alas, we remain besieged by woes all around us, some man-made and some natural. We did not ask for them. That choice was not ours to make. They were given to us for the living of our lives. We are all in this together and we will get through it together. Meanwhile, let us rejoice in this Advent. It is a new year. Peace.
THE BISHOP OF ALABAMA RESPONDS TO THE CRISIS AT THE ADVENT
The Rt. Rev. Glenda Curry, Bishop of Alabama, released a letter yesterday concerning the ordinations she conducted at the Episcopal Cathedral Church of the Advent, in Birmingham last week. Find the letter HERE .
Curious that both the letter from the interim dean/vestry and the letter from the bishop refused to use the word homosexual when the subject was homosexuality. They both used euphemisms as "theological expressions." Let's be honest and forthright and confront the real issue at hand. The brouhaha at the Advent now started with the news of the ordination of a non-celibate homosexual person. This is not a theological issue. It is a social one.
The Advent should get the memo that the Episcopal Church resolved the question of the ordination of non-celibate homosexuals a long time ago. What the bishop does about
ordinations is her business, not that of the Advent. Furthermore, the Advent is her cathedral church. She is the authority there. That is why she gets to sit in the big chair and wear the big hat.
THE NEW BLACK FLAG AT THE ADVENT
A figurative black flag has been hoisted at the Episcopal Cathedral Church of the Advent, in Birmingham, Alabama, the place that is famous, or infamous, for hoisting a real black flag over its front door in 2003 when the Episcopal Church affirmed the first partnered homosexual person as a bishop of the church. A new storm is roiling the waters at the Advent and it is still about the issue of the place of homosexuals in the church. Ironically, this is in a city that has been ground zero in the struggle for human rights in contemporary America. Unfortunately, the clerical and lay leadership of the Advent is still swimming against the tide for human rights in their city and in their church. The Advent has been in crisis all year long; and just when one thought the waters were calming, this new storm hit.
To recap what happened:
---Dec. 7, 2021, at 5:30 p.m., the bishop of Alabama, Glenda Curry, ordained to the priesthood, in the Episcopal Cathedral Church of the Advent, four people. One was reported to be a partnered homosexual person. See the diocesan announcement about the ordination HERE . The two hour and twenty minute video of the ordination is available on Youtube.
---Dec. 8, AnglicanInk, a website often critical of TEC, posted a report from a "John Jenkins" describing the ordination of a partnered homosexual person in the Advent the evening before. The author was not identified but was obviously someone who knew in detail the recent history of the Advent. No source was given for the report. It caused an explosion at the Advent. The next day, the mysterious posting was removed from the AnglicanInk site. It is no longer available (Google it and see).
---Dec. 9, "Craig Smalley, Interim Dean and Rector; and The Vestry of the Cathedral Church of the Advent" sent a letter to the Advent email list.
The letter (click on image for enlargement):
Note that yesterday's letter does not use the word homosexual. The reference is covert. The overt is found in the 2006 Report "Speaking the Truth in Love" which the letter mentions. Find the Report HERE . As far as I can tell, this Report was first posted on the Internet yesterday in order to bolster the content of the letter. The Report condemns homosexuality outright. So, all of this brouhaha is basically about the issue of homosexuality.
The people of the Advent need to know that equality for and inclusion of homosexuals in the life of the Episcopal Church was settled by the church in the 1990's through a church court and various resolutions and canonical changes by General Convention. Since 1996, no one can be denied ordination in the Episcopal Church on the basis of sexual orientation. The clerical and lay leadership of the Advent are entitled to their opinions, but they are not entitled to dictate what the Episcopal Church can and cannot do about ordinations.
Whether the Episcopal Cathedral Church of the Advent holds ordinations in the future, of any new priests, is up to the church and the diocese. The Advent is not a congregational or independent church. It is the cathedral church of a diocese that has accepted the national leadership on questions of ordination. The bishop and the dean will have to deal with holding ordinations at the Advent in the future.
I suspect that a couple of factors are at work here in this week's crisis. One must bear in mind that the last dean left the Advent to start his own church (in ACNA). It is now meeting in a synagogue on the south side, near five points. This is not far from downtown. Certainly, the former dean would want as many communicants as he can get for his new endeavor. It is in his interest to get people to follow him. Recently he was reported as saying he had a couple of hundred people in his new congregation, about half from the Advent. If only 100 communicants of the Advent followed him out, that amounts to about 3% of the membership, not exactly a stampede out.
Another factor is that the Advent is right in the middle of the process of finding a new rector/dean. Certainly the different viewpoints are vying for influence in finding the new leader. It is in the conservatives' interest to keep the issue of homosexuality alive in the parish.
There is much that we do not know about what happened this week. Who is "John Jenkins"? What was the source of his letter? Why did AnglicanInk post it? Why did they delete it the next day? It challenges credulity that the leadership of the Advent did not know about the ordinands beforehand. Why did not they make an issue of this then? And, most of all, why is this an issue now?
The Advent has certainly had more than its share of troubles this year. On that, everyone must have sympathy. Obviously the issue of homosexuality remains highly contentious in the Advent, even after all these years. It just does not want to go away. I do not know that there is a solution or that there will ever be a consensus. I do know that we are called to love our neighbors as ourselves and not to stand in judgment on them. Perhaps the Advent needs to get back to the most basic truths of the Gospels and stop worrying about what is wrong with other peoples' behavior.
MORE REFLECTIONS ON YESTERDAY'S HEARING
Let's face it. Yesterday's hearing in the South Carolina Supreme Court was a mess. Everyone on both sides is still trying to figure out what happened and what it meant. The lawyers were fairly well focused and did well, but the justices were all over the place. Throwing out questions from one subject to another, they all seemed to be thrashing about looking for the life raft that never came. So what are we to make of this confusion? Where are we now in the church case that has dragged on for nearly nine years? Whatever next?
I must note that what I offer here is only my opinion and I speak for no one but myself. Having said that, here are my thoughts on the day after.
First, we must keep in mind the specific issue before the court. It is Judge Edgar Dickson's Order of June 19, 2020, in which he found all in favor of the secessionist diocese and parishes. The Episcopal side appealed this order to the SCSC. They are asking the SCSC to vacate, or overrule, Dickson in favor of the SCSC decision of August 2, 2017. The other side, the Anglicans, are asking the SCSC to affirm Dickson and leave it as the final order.
In the course of the hearing yesterday, these were the issues and questions that stood out. I offer them with my answers:
---Were there majority decisions in the SCSC collective opinion of Aug. 2, 2017?
Yes. There were three majority opinions in the written decision. This was clearly affirmed even by the justices who dissented in part or in whole to the majority.
First, the then Chief Justice Jean Toal assigned herself oversight of the case and wrote a lengthy summary of the court's decision at the end of the paper. On the last page, 77, she listed the three majority decisions and who voted for each.
All of the other justices wrote into their opinions that there were majority decisions. Justice Beatty wrote on p. 37: I agree with the majority as to the disposition of the remaining parishes because their express accession to the Dennis Canon was sufficient to create an irrevocable trust.
---Was the majority opinion in 2017 that 28 parishes had acceded to the Dennis Canon and 8 had not?
Yes. This was clearly summarized by Toal on p. 77.
---On what basis did the majority decide on accession?
Two factors. 1-the court record from the trial court which had conducted a trial in 2014; and 2-the concept of "minimal burden" on the Episcopal Church in enforcing its property trust.
1-The court record held the acts of the individual parishes in regard to accession. Judge Goodstein had not discussed in the courtrrom the accessions of the individual parishes in the trial. She held that the Dennis Canon had no effect in SC because the parishes had never expressly set up trusts and the parishes, and diocese, had legally seceded from the Episcopal Church, property in hand.
The justices of the SCSC had the court record and studied it. The record had the actions of each of the 36 parishes in question. Four (Pleicones, Hearn, Kittredge, and Beatty) agreed, from the content in the record, that 28 of the 36 parishes had acceded to the Dennis Canon. Kittredge wrote (p. 39) While I agree the national church could not unilaterally declare a trust over the property of the local churches, I would join Chief Justice Beatty and hold that the local churches' accession to the 1979 Dennis Canon was sufficient to create a trust in favor of the national church.
This showed that Kittredge and Beatty joined with Pleicones and Hearn in agreeing that the evidence in the court record was enough for them to declare the 28 had acceded to the Dennis Canon.
The same court record passed to Judge Edgar Dickson. As Goodstein, he did not hold discussions in any of his several hearings on the individual parishes' accessions. I do not know whether the lawyers on one or both sides submitted additional information to him on this matter. Dickson ruled in his 2020 order that no parish had acceded to the Dennis Canon thus directly contradicting the majority in the SCSC decision.
Thus, on the issue of accession to the Dennis Canon there was a direct conflict between the SCSC decision and Dickson's order.
2-Minimal burden. This raised the question of what constituted the formation of a trust in the context of a religious institution. Goodstein, and the Anglican side, insisted that SC law required the property owner to make an explicit document in writing to form a trust for another party and that none of the parishes had done that. Judge Dickson agreed and used that as justification of his finding.
The majority in the SCSC followed the minimal burden guide. This held that the U.S. Supreme Court had ruled that religious institutions could not be held to an undue burden on property but must be given "minimal" burden. Minimal was not defined.
Even though Justice Kittredge went on to hold that the parishes revoked their accessions to the Dennis Canon and to dissent from the majority, he did advance the minimal burden concept. He wrote (p. 40):
I believe where there is a dispute involving a local church's property rights vis a vis a national religious society and an affiliated local religious body, constitutional considerations require courts to analyze and resolve property dispute through the framework of a "minimal burden" on the national religious organization.
He went on that even though a local parish had not explicitly set up a trust for the national church, its construction of trust could be construed by other means under a minimal concept. He wrote on p. 42:
given the Supreme Court's imprimatur concerning the minimal burden that may be imposed on a religious organization, I conclude that a trust was created in favor of the national church over the property of the twenty-eight local churches that acceded in writing to the 1979 Dennis Canon.
So, under minimal burden, the majority ruled that parishes had only to accede to the Dennis Canon instead of making explicit documents of trust formation for the Episcopal Church. Goodstein had disagreed. Dickson was to disagree.
Thus, the majority of the SCSC (Pleicones, Hearn, and Beatty) agreed that the 28 parishes were property of the Episcopal Church because they had acceded to the Dennis Canon. Although Kittredge had agreed they acceded to the Canon, he went on that they revoked their accessions at the moment of the schism. He and Toal dissented from the majority on the issue of final ownership of the properties of the 28 parishes.
---Did the SCSC refuse a rehearing after its Aug. 2, 2017 decision?
Yes. The court voted 2 (Pleicones and Beatty) against and 2 (Toal and Kittredge) for a rehearing. This tie vote denied a rehearing which required a majority vote.
Note that Beatty voted against a rehearing.
---Did the SCSC remit or remand its Aug. 2, 2017 decision to the lower court?
Remit. On November 17, the SCSC issued a formal order of Remittitur to the circuit court, the court of origin.
A remit is an order to the lower court to implement a higher court decision. A remand is an order to the lower court to reconsider, or retry, the issues at hand.
---Was the secessionist party deprived of "due process" by the SCSC?
No. The issue of accession to the Dennis Canon came up in the circuit court trial of 2014 but not in courtroom discussion. Judge Goodstein ruled that the parishes had not set up trusts for the Episcopal Church and thus retained their properties. The Anglican side did not complain about "due process" at that time.
As I recall, the Anglican side did not bring up due process in the hearing before the SCSC in 2015. They only brought it up after the SCSC issued its written decision in 2017. Then they said they had been deprived of due process because the SCSC had decided the accession issue without allowing the parties to present more evidence.
When Judge Dickson issued his order in 2020, the Anglicans declared they had found due process and this should be the end of the issue. In the hearing yesterday, when pressed about this, Runyan said the issue should not be reopened.
In fact, the Episcopal side could make a good case that they had been deprived of due process both by Judge Goodstein and Judge Dickson both of whom had kept the accession issue out of their trial/hearings.
In my view, due process is a moot issue. The litigation process is over. The question now is which of the two decisions is final: the SCSC or Dickson. It is too late in the game to re-litigate any part of this case. Anyway, I do not see how the Anglicans can say they had due process under Goodstein but not under the SCSC. The court record was the same.
---Did Judge Dickson recognize the majority decisions in the SCSC collective opinion of 2017?
Dickson recognized and implemented the third majority decision from the 2017 opinion. In one of the hearings, he asked the lawyers to agree (they did) to allow the eight parishes to have uncontested ownership of their local properties.
Dickson ignored the first and second majority decisions.
What happens now?
The justices will vote to affirm (uphold) or vacate (reverse) Judge Dickson's order of 2020. They will prepare written opinions supporting their views. There is no time frame for this. The last time it took nearly two years for the court to release its collective opinion.
It is possible there could be partial affirmation and reversal, that is, the court could agree with some of Dickson's findings and not others.
If they uphold Dickson completely, the secessionist side will gain uncontested ownership of the local properties and Camp St. Christopher.
If they vacate Dickson completely, the Episcopal Church will regain the local properties and cede them to the Episcopal diocese and the Episcopal trustees will regain ownership of the Camp.
Finally, the integrity of the SC Supreme Court is at stake. They issued majority decisions that became the law. They directed the lower court to implement their majority decisions. The lower court refused and instead reversed the majority decisions of the state's highest court. If the SCSC allows this to stand, they will set a most dangerous precedent that the lower courts do not have to honor SCSC decisions. Beyond all the issues involved here, this is the paramount one the five justices in Columbia should be considering today.
"HOW MANY BITES OF THE APPLE DO YOU GET?"
Justice Kittredge asked Alan Runyan the pertinent question of the day, "How many bites of the apple do you get?" The answer, of course, was as many as the courts would allow until he won. He won in the circuit court, lost in the supreme court, then won again in the circuit court and now, having secured his goal, is calling for the door to close. How convenient.
So, should the SC supreme court agree that the breakaways should have been allowed to keep on biting the apple until they had it all? In other words, should the SCSC decision of 2017 stand as final, or should the circuit court decision of 2020 stand? Sorry to say, on that question, we got nothing but confusion today. I am as baffled as anyone else on the meaning of today's hearing.
In the center of all this confusion was the most puzzling matter of all, Chief Justice Beatty's opinion. Today, Beatty said in 2017 he had agreed only on the disposition of the eight parishes that had not acceded to the Dennis Canon. He said he made no decision on the other churches and added there was "no majority for Hearn and Pleicones." Even more strangely, at the end of the hearing Beatty apologized for the "confusion" surrounding the 2017 decision and blamed it all on the lawyers who had given him a "pared down" record that did not present enough information. I am still scratching my head.
Frankly, I have no idea what Beatty was talking about today. And so, I went back and re-read his part of the 2017 opinion. Here is what he wrote then about the parishes:
Yet, TEC argues that the parishes' accession to the Dennis Canon created the trust. Assuming that each parish acceded in writing I would agree. In my view, the Dennis Canon had no effect until acceded to in writing by the individual parishes.
Thus, in contrast to the majority, I would find the parishes that did not expressly accede to the Dennis Canon cannot be divested of their property. Because there was writing purporting to create a trust and they took no other legal action to transfer ownership of their property, I believe these parishes merely promised allegiance to the hierarchical national church. Without more, this promise cannot deprive them of their ownership rights in their property. However, I agree with the majority as to the disposition of the remaining parishes because their express accession to the Dennis Canon was sufficient to create an irrevocable trust.
THEIR EXPRESS ACCESSION TO THE DENNIS CANON WAS SUFFICIENT TO CREATE AN IRREVOCABLE TRUST.
It seems perfectly clear that in 2017 Beatty agreed the 29 had acceded to the Dennis Canon and he did join with Hearn and Pleicones to make a majority. So, I do not know what Beatty meant today when he said he made no decision on the 29 and did that Hearn and Pleicones did not have a majority. Something is amiss.
Does Beatty get to "revise" his opinion of 2017 today? I do not think so. As I told my students over the years, I have to grade you by what you have down on the test paper. You do not get to go back and change it later. The 2017 decision says what it says. It became the law of the land. It is fixed. We have to go by what is written in the 2017 decision.
Basically, the lawyers of the two sides argued alternately that the Dickson order should be vacated and affirmed. The Episcopal lawyer, Skip Utsey, said unsurprisingly that the 2017 SCSC decision was final and that the remittitur to the circuit court required implementation without alteration. The Anglican lawyer, Alan Runyan, argued that his side had been deprived of "due process" in the disposition of the parish and Camp properties which had not been argued in the circuit court in 2014. He held that the SCSC had no right to rule on the properties since it had not been part of the lower court trial. (The parish accessions were in fact part of the record that was presented to the SCSC in 2015 even though discussion of such had been omitted from argument in the circuit trial.) Therefore, Judge Dickson was right to consider the accessions in order to give due process on this issue. Dickson's order must be left to stand because it was based on the due process that had been denied in the supreme court.
Accession to the Dennis Canon was the main point of discussion today with Justice Few going on and on about it musing on the absence or dubiousness of the evidence that the parishes in question had in fact acceded to the Canon.
I, for one, could not see how the justices could take up the accession question again. The 2017 SCSC decision ruled by majority (4 of 5) that 29 parishes had acceded to the Dennis Canon. The 2020 Dickson decision ruled that no parish had acceded to the Dennis Canon. It has to be one or the other. There is no third way. Whether there was or was not accession has been decided. So, it boils down to whether the supreme court or the circuit court should have the last word. Only one of the five justices today, Kittredge, seemed clearly to defend the integrity of the supreme court decision. Few and James seemed to want to re-litigate the accession issue.
In my view, two justices leaned to upholding the 2017 SCSC decision today, Kittredge and Lockemy. Two seemed to lean to affirming Dickson, Few and James.
If there is a 2-2 split, Chief Justice Beatty will, once again, be the pivotal vote, as he was in 2017. As I said, following today's performance, I have no idea how to read Beatty. Although he bristled at any assertion that he had affirmed the accessions of the 29 parishes and had joined in a majority, he seemed ambivalent about Dickson. Early on, Beatty said, "I think the trial judge did exactly what we expected him to do." Later, he said the SCSC decision was remitted to the lower court, and not remanded. Remit would be implementation while remand would mean re-litigation of the issues. Dickson had acted as if the decision was remanded and not remitted. So, bottom line on Beatty, I am at a loss. I have no idea of where he is or where he is going in the impending written decision. This was the most disappointing aspect of today's hearing.
Is it possible that the Chief Justice of the South Carolina Supreme Court would abandon a final decision of his own court in favor of a later contradictory circuit court decision? Surely he, and the other justices, realize the seriousness of such a thing. Allowing Dickson to stand in place of the SCSC decision will set a most dangerous precedent. No SCSC decision would ever be final. Any circuit court could "interpret" a SCSC decision at will. A circuit court could, in effect, veto any SCSC decision. I refuse to believe the five justices today cannot be thinking about these things. The whole integrity of their court is on the line.
After nearly nine years of litigation, one longs for finality and closure. We did not get that today, and, given the tenor of the day, I am not at all sure we will have it in the near future. We did not even get clarity today. The creek is muddier than ever. On that, I am as disappointed as anyone about today's hearing.
THE HEARING HAS ENDED
The hearing has ended. It lasted longer than expected, about an hour and a half. Here are my initial thoughts.
Apologies. I reported on this blog that the public would not be allowed in the courtroom. There were in fact some ten people in the room today. I do not know who they were or why they were there. I apologize to all my readers about my false information I presented. I called the Clerk's office on two different occasions and asked about the public's attendance. I was told flatly on both occasions that the public would not be allowed in the room. Obviously that was not correct. I should not have passed on that information and I am sorry for doing it.
James Lockemy is the Acting Justice. He is the Chief Judge of the SC Court of Appeals. He seemed to me to be knowledgeable about the case and comfortable with the Church's position.
I was dismayed by Chief Justice Beatty's comments. I will have to listen to all he said again, but it seemed to me as if he wanted to back away from his participation in the majority decisions of 2017.
Justice Few talked the most and seemed bothered by the accession question. He seemed to want more factual findings about each parish's accession. I just wonder how such a thing could be done at this point.
Justice Kittredge did not talk much but seemed satisfied with the 2017 decision. At one point the asked Runyan, "How many bites of the apple do you get?" Indeed.
I am going to re-listen to the hearing and try to make more sense of it. At this point, nothing is clear. I do not know how to read any conclusion into today's hearing.
Just off the top of my head, it seemed that Kittredge and Lockemy were satisfied that the 2017 was final. Few, mostly, and James to a lesser degree, were bothered by the 2017 decision. Once again, as in 2017, Beatty is an unknown. In 2017 he wound up siding with the Episcopal side but he sounded today if he were not sure that was the right side. So, who knows how Beatty will move now?
THE ACTING JUSTICE IS
A RENAISSANCE MAN
Lockemy has had a long and highly distinguished career in the law and the state courts of South Carolina. Born on September 23, 1949, he is now 72 years old. According to my information, he must retire as an Appeals Court judge by the end of this year.
His life story is one fit for a Hollywood movie, the poor boy who made it big. He was born in the Newtown area of Dillon County SC where his parents owned a mom-and-pop store, Lockemy's Grocery. Throughout all the years he both kept to his roots and excelled far above them. According to the blurb on the SC Court of Appeals website he has been: bagboy, newspaper boy, Captain in the U.S. Army, Colonel in the National Guard, member of the SC state legislature, youth baseball coach, actor in a community theater, lawyer in a local firm, circuit judge, judge on the SC Court of Appeals, Chief Judge of the Court of Appeals, Kiwanian, and adjunct professor of the USC law school. Yet through it all he has remained a son of Dillon County. What a résumé!
In education, he is a man after my own heart: B.A. in History from University of North Carolina, Pembroke; law degree USC; M.A. in History from the Citadel; and presently working on a Ph.D. in History [at age 72!], at USC. Who could not be impressed?
For more insight into his remarkable personal life, see this article from Dillon. The author points out Lockemy is a Native American. The ABA website says he is the first Native American to serve as Chief Judge of the SC Court of Appeals.
Thus, among the five justices in the hearing, one is an African American man, one is a Native American man, and three are white men. What is wrong with this picture? What about the 51% of the population not represented on the court today? The only woman on the SC Supreme Court now was ruthlessly hounded off the case by certain partisan elements in the state. Courts, as juries, should reflect the people of the community they serve. Nevertheless, we have what we have.
As far as the church case goes, the only hint we have of Lockemy's attitude about it comes from a summary of the 2017 SCSC decision he wrote (page 72 of 89) in 2018 for the state bar annual report. At the end he stated:
While all individuals are guaranteed the freedom of disassociation from a religious body, here the question of the disposition of ecclesiastical property following the disaffiliation from the [Appellants] is a question of church governance, which is protected from civil court interference by the First Amendment. (p. 72 of 89)
If Judge Lockemy still defines the case the same way today (and no one should dare speak for him), I would take this to mean he would see the matter at hand as a First Amendment case. If so, it seems to me if the majority of justices agree this is a First Amendment case, it would follow that they would have to defer to the Episcopal Church to decide its own polity and policies. This was essentially what the majority did in the SCSC decision of 2017 and what the circuit court did not do in 2020.
THE HOUR IS NIGH
The hearing before the South Carolina Supreme Court is finally near at hand. It will be on Wednesday, the Eighth of December, at 9:30 a.m. EST, in the courtroom of the SCSC, in Columbia.
Following COVID-19 protocols, the only outsiders allowed in the courtroom will be the two attorneys named by each party. The rest may watch on the court's live-stream.
The two attorneys representing the Episcopal diocese will be Thomas Tisdale, chancellor of the diocese, and Bert G. (Skip) Utsey III. The national Episcopal Church will be represented by attorney Mary Kostel. The Anglican Diocese of South Carolina will be represented by C. Alan Runyan and C. Mitchell Brown.
Click HERE for the SCSC live-stream.
The question now is, For what should we look in the hearing?
First, let us consider what not to look for. The arguments of the lawyers on both sides are already well known and laid out in detail in the written briefs. No doubt, they will spend as much time as they can to press their main points. Each side has only 25 minutes, Episcopal side first, then Anglicans. Finally, the Episcopal lawyers have 10 minutes for rebuttal. The whole hearing is one hour.
For the written briefs of all parties, see the SC courts website: sccourts.org/ACMS/. The Appellate Case Number is 2020-000986. This will give one all of the papers that have been filed in this appeal.
In a nutshell, the Episcopal side will probably argue that the SCSC has already settled the issues of the case in the three majority decisions of their August 2, 2017 opinion. Denial of rehearing and of cert in SCOTUS rendered the decision final. The SCSC remitted their opinion to the circuit court for implementation. Instead, the lower court improperly religitated the case and issued an Order in contradiction of the SCSC opinion. Thus, SCSC should vacate the lower court's action and restore the remittitur to the circuit court to enact the three majority decisions (actually two---one was implemented by the circuit court).
Click HERE for an impartial summary and full text of the SCSC Aug. 2, 2071 decision.
The Anglican side will argue that the SCSC decision was not definitive, but was fractured into five different opinions with no coherent majority. It did not give clear direction to the circuit court. The lower court had every right to interpret the meaning of the SCSC decision by considering its totality. Following this, the circuit court was right to find that no parish had acceded to the Dennis Canon and the local entities had properly followed state law to separate from the Episcopal Church. Thus, the SCSC should affirm the circuit court's finding and leave Dickson's Order of 2020 standing.
Click HERE for Judge Edgar Dickson's Order of June 19, 2020.
To get right down to basics, the argument is over who owns the properties of the 29 parishes and Camp St. Christopher. The Episcopal side claims it owns them essentially because of the Dennis Canon. The Anglican side asserts it owns them because the Dennis Canon had no effect under state law and the parishes (and diocese) legally and legitimately seceded from the Episcopal Church.
The matter at hand in the SCSC is the Episcopal side's appeal of Judge Dickson's 2020 Order which purported to reverse the 2017 SCSC decision and award all properties in question to the secessionist side.
So, we know what the lawyers are going to say on Wednesday. The real question now is what the five justices are going to say. Their questions, comments, and discussions will give us hints as to their thinking, what they consider important, and the strengths and weaknesses of the arguments before them. After all, the justices will decide this case, not the lawyers. As an example of how important a hearing can be, the SCOTUS hearing last week on abortion told us very clearly where that court is going on Roe v. Wade (It is substantially dead). We got that simply by listening to what the nine justices said.
Justice John Kittredge is one to watch carefully on Wednesday.
Kittredge was a part of the 2017 decision when he and Chief Justice Jean Toal dissented from the majority. They concluded that the parishes owned their properties, but for different reasons. Kittredge argued that the Episcopal Church did create a trust under the "minimal burden" concept. He agreed that 29 of the 36 parishes in question had in fact acceded to the Dennis Canon. However, he went on that the parishes had legally and properly seceded from the Episcopal Church under state law and by doing so negated the trust. This left them with their local properties. (Toal argued that the Episcopal Church never imposed a trust and the parishes were always the owners of the properties without trust restriction.)
Thus, while Kittredge wound up favoring the secessionist side, and dissenting from the majority, most importantly, he declared that the 29 parishes had acceded to the Dennis Canon. Judge Dickson, in contradiction, held that not one of the parishes had ever acceded to the Canon. Dickson wrote:
This court finds that no parish acceded to the 1979 Dennis Canon (p.1 of 47).
So, the point to watch is how Kittredge reacts to the ADSC lawyers' assertions that he was wrong in his 2017 opinion concerning the parishes' accession to the Dennis Canon.
Another one to watch carefully is the present Chief Justice Donald Beatty:
He and Kittredge are the only ones of the five justices in the hearing who were parts of the 2017 decision. In the hearings before Judge Dickson, the ADSC lawyers made much of Beatty's opinion in the 2017 decision. Although Beatty wound up squarely on the side of the Church in his opinion, he said along the way that state law, as seen in the All Saints decision, required the parishes to set up trusts (could not be imposed from outside). He judged that the 29 parishes had acceded to the Dennis Canon, in effect setting up trusts. Beatty wrote:
their express accession to the Dennis Canon was sufficient to create an irrevocable trust (p. 38 of 77).
As I saw it, the ADSC lawyers interpreted Beatty's words as denying that TEC in fact had trust interest over the parishes. In other words, it seemed to me the lawyers charged that Beatty contradicted himself, or at least really meant to oppose the validity of the Dennis Canon in SC. So, it will be fascinating to hear how the ADSC lawyers explain Beatty's opinion to the Chief Justice's face.
The next justice to watch will be the Acting Justice. We know he or she will be a state judge prominent in the court system; and we will know his or her identity when the camera turns on. The court record of this case over nearly nine years runs to 9,000 plus pages. One has to admire any judge who would take on such a monumental challenge. Every justice has clerks, lawyers who do the leg work, but in the end the justice alone gives the judgment. I will be listening carefully to every word from the AJ. (I plan to post an announcement here of the AJ as soon as we all know the identity.)
Two more dark horses are the justices new to the court since the 2017 decision, Justice John C. Few:
and Justice George C. James, Jr.:
I, for one, have no idea of how to "read" these two since I know nothing about their past published opinions. So, as with the AJ, we will be listening carefully to their questions to get some sense of what their attitudes might be.
The hearing on Wednesday will be just that, a "hearing" of the lawyers' arguments and responses to the justices' questions, which are bound to be many. Then, we will have to wait for the written decision. We all know not to hold out breaths. The last time the hearing was in September of 2015 and the written decision appeared in August of 2017. Let us hope this time will be more expeditious.
The justices' decision(s) will be by majority vote. This hearing is an appeal of Judge Dickson's Order of June 19, 2020. To affirm or vacate the order will require a majority vote. However, if for some (highly unlikely) reason one justice abstains, a 2-2 tie would leave Dickson in place.
In my opinion, the justices should deny Dickson's Order and issue a new, clear, strong directive to the circuit court to implement all three of the majority decisions of the 2017 paper. The integrity of the South Carolina court system is at stake. A majority opinion of the state supreme court must be enforced. A lower court must not be allowed to defy such a decision, and a remittitur order to boot. If a lower court is permitted to "interpret" a high court opinion to the point of reversing it, chaos will result in the whole judicial system of the state. No decision of the SCSC would ever be final.
Thus, on one level, the issue before the court on Wednesday is really simple, whether to defend and enforce a state supreme court decision or to allow a circuit court to replace such. I, for one, do not see how such a choice could be controversial. It is cut and dried. The supreme court has to be that, supreme.
The other aspect that I think is cut and dried is the application of the First Amendment to this case. The First Amendment of the U.S. Constitution prohibits the state from interfering in the internal affairs of a religious body. No civic court has a right to tell a church, particularly an hierarchical one (practically everyone except Judge Diane Goodstein agrees TEC is hierarchical), what it can and cannot do in its own affairs. Respect for the First Amendment alone should close this case in the interest of the Episcopal Church.
Finally, moving to the bigger picture, in my opinion, there is a right side and wrong side at odds beyond the particular issues of jurisprudence and Constitution. The larger issue at hand is one of human rights. The Episcopal Church is a champion of people who have been powerless, marginalized, ignored, discriminated against, even demonized for ages past. For seventy years, the Church has fought to make right historic moral wrongs, to bring equality and inclusion to all of God's children, most notably African Americans, women, and homosexuals. This is the right side of morality because it is the loving care of all of God's creation. Unfortunately, the leadership of the old diocese resolved to reject the Church's efforts for human rights. They led the majority of the diocese out of the Episcopal Church and adopted an explicit stand against equality and inclusion of gays and women. This is the wrong side of morality, and of history.
And so, I hope and pray that the five justices considering this case see it as more than just a matter of human law. It is a matter of human rights for all of the citizens of South Carolina. It is a matter of the faithful promotion of the goodness of divine creation. If the justices understand this case on every level, justice will prevail.
Finally, dear reader, I expect to return on Wednesday. Then, I will post on this blog a report of the hearing as soon as I can organize my thoughts. I would like to have your thoughts too. I encourage you to share with all of us your impressions of the hearing and/or views of the case. Send to the email address above and, if you wish, I will share with readers. Until then, peace.
ONE WEEK TO GO
Greetings, blog reader. Today is Wednesday, the First day of December 2021. One week from today, on Wednesday, December 8, 2021, the South Carolina Supreme Court is scheduled to hold a hearing on the church case. The five justices will "hear" the arguments of the lawyers on both sides. Since time is limited, one hour, much of it will be taken up by questions from the justices. According to the Court's posted rules, each party may have two lawyers in the courtroom. The Episcopal side has listed three lawyers since there are two parties on that side, the national church and the local diocese. The public will not be allowed in the courtroom. There will be a live-stream of the hearing for all to watch. I expect to watch and post a report here as soon as possible after the hearing.
We know there will be an Acting Justice to take the place of recused Justice Kaye Hearn. However, the court will not post the name of the AJ before the hearing. As soon as the camera turns on, we will all know the identity of the AJ. I will relay it on this blog as soon as the hearing begins.
The matter before the court is simple: whether to affirm or reverse Judge Edgar Dickson's Order of 2019 which awarded all local properties in question to the secessionist side. The Episcopal side is appealing Dickson's Order. Dickson reversed most of the South Carolina Supreme Court decision of August 2, 2017, which had awarded 29 of the 36 parishes in question, plus Camp St. Christopher, to the Episcopal side (he recognized and enacted one of the three majority decisions in the SCSC opinion---the one giving seven parishes the properties). So, the question boils down to whose decision should stand as final, the state supreme court's or the circuit court's. This should be a no-brainer.
After nearly nine years (since Jan. 4, 2013) in court, we are nearing the expected end of the litigation. In effect, the SCSC is about to decide at long last who gets the bulk of the local properties and the Camp, the secessionist diocese or the Episcopal Church. The federal court has already decided that the Episcopal Church is hierarchical and the Episcopal diocese is the one and only true heir of the pre-schism diocese (this is now on appeal but not on stay). The fed court even issued an Injunction forbidding the schismatics from claiming in any way to be the historic diocese, something the Episcopal side had to enforce twice following the breakaways' intransigence. To say all of this twisted litigation has been contentious would be an understatement.
My advice to all of us, on the cusp of what will probably be the deciding judgment of the court on the property, is to listen carefully to the questions the justices ask next Wednesday. They will indicate the thinking and direction of the justices as they contemplate this appeal.
I have laid out the issues as I understand them as well as I can in earlier blog posts. I am repeating two that may be helpful to review, the first from September 24, 2021, and the other from May 13, 2021.
Originally posted on September 24, 2021:
BEFORE THE SOUTH CAROLINA SUPREME COURT, AGAIN
The Episcopal Church case is back before the South Carolina Supreme Court. The justices have scheduled a hearing at 9:30 a.m. on Wednesday, 8 December 2021, in the courtroom of the Supreme Court building, in Columbia. I assume it will be livestreamed. I plan to be in the courtroom in person if at all possible.
The issue before the SCSC now is the appeal brought by the Episcopal Church side of Judge Edgar Dickson's order of 19 June 2020. Dickson ruled that the 29 parishes in question, not the Episcopal Church, own their own property, and the Anglican diocese owns Camp St. Christopher, not the Episcopal diocese. On these essential points, Dickson reversed the SC Supreme Court decision of August 2, 2017. The SCSC had ruled that the Episcopal Church owned the local properties and the Episcopal diocese owned the Camp.
The crux of the matter was the Dennis Canon. The SCSC ruled that the 29 had acceded to the Canon. Judge Dickson ruled that the 29 had not acceded to the Canon.
The hearing will allow the justices to hear the presentations of both sides and to ask questions of the lawyers. One may assume that Alan Runyan will lead the team for the secessionist side as he has done from day one. However, the lawyer who made the case for the Episcopal Church side in the hearing of 2015 will not do the same. Blake Hewitt is now a justice on the SC Court of Appeals. To my knowledge, the Church side has not announced the lawyers who will speak in the hearing.
The long legal war of the schism is now in the ninth inning. It is approaching the end. What the SCSC rules on TEC's appeal of Dickson's order will almost certainly be the end of the game. If they uphold the Dickson order, the breakaways keep the parish properties and the Camp. If they uphold the SCSC decision of 2017 and deny Dickson, the Episcopal Church diocese gets the 29 parishes and the Camp. It is as simple, and important, as that. It will be one or the other, for keeps.
The losing side could appeal the SCSC decision to the U.S. Supreme Court but the chance they would take it is between nil and none. So, whatever the SCSC decides next will close the book. This is what makes this hearing so important. It is the last chance both sides have to make their best cases. They had better be well prepared.
I do not know how to give my thoughts on the situation before the SCSC now any better than I did in the blog piece below that I originally posted on May 13, 2021. It think it is worthwhile to repeat:
THE CRISIS BEFORE
THE SOUTH CAROLINA SUPREME COURT
The crisis of the hour is in the hands of the justices of the South Carolina Supreme Court. What they decide will seal the fate of the schism in South Carolina. After eight and a half years of bruising legal warfare, the judicial settlement is approaching. Which side will finally take possession of the 29 parishes and the Camp? While we wait, we have a good opportunity to review the state of the litigation between the old Church diocese (EDSC) and the new breakaway diocese (ADSC).
First, the salient facts on how we reached this point:
---2017, Aug. 2. The South Carolina Supreme Court issued a decision on the Church diocese's appeal of Judge Diane Goodstein's Order of Feb. 3, 2017. The SCSC ruling listed three majority decisions: 1) 8 (7) parishes own their own property, 2) the Episcopal Church owns 28 (29) of the 36 parishes in question, and 3)the Episcopal diocese owns Camp St. Christopher.
---Nov. 17. SCSC denied ADSC's request for a rehearing (on vote of 2-2).
---Nov. 17. SCSC issued a Remittitur to the Circuit Court for the implementation of its Aug. 2 decision.
---2018, June 11. The U.S. Supreme Court denied ADSC's petition for review of the SCSC Aug. 2 2017 decision (denial of cert).
---2019, Sept. 19. U.S. District Court judge in Charleston, Richard Gergel, issued an Order recognizing the Episcopal Church as an hierarchical institution and the Church diocese as the only legal heir of the old diocese. He also issued an injunction banning the breakaway faction from claiming in any way to be the historic diocese. This was the first federal court decision on the question of the hierarchical nature of the Episcopal Church.
On Dec. 18, 2019, Gergel denied ADSC's request for a stay of his Order. On Jan. 14, 2020, the U.S. Court of Appeals denied ADSC's request for a stay of the Order. Thus, Gergel's Order remains in effect.
---2020, June 19. Circuit Court Edgar Dickson issued an Order reversing the SCSC decision on the 29 parishes and the Camp. He declared the Episcopal Church had no interest in the parishes on the grounds they had not acceded to the Dennis Canon. The majority of justices of SCSC had ruled that the 29 had in fact acceded to the Dennis Canon.
---Aug. 8. The SCSC agreed to take EDSC's appeal of Dickson's Order.
---Oct. 29. The U.S. Court of Appeals agreed to stay ADSC's appeal of Gergel's decision pending a ruling from the SCSC.
---Nov. 12, 2020 to Mar. 4, 2021, the EDSC and ADSC filed briefs with the SCSC. EDSC argued to overturn Dickson in favor of the SCSC decision. ADSC argued to sustain Dickson's Order.
The basic question is, Which side is entitled to the ownership of the 29 parishes and the Camp? The opposing views are the SCSC decision of Aug. 2, 2017 favoring the TEC side, and the Circuit Court Order of June 19, 2020 favoring the breakaway faction.
The SC Supreme Court of today taking up this matter is not the same as the court that handed down the decision of 2017. Two justices who participated in 2017 have retired (Toal and Pleicones). Another justice from 2017 has recused herself from the case (Hearn). This leaves four active justices today. It is possible the court could bring in an "Acting Justice" to fill out the five seats, but there has been no word about this.
The two justices who sat on the 2017 bench still there are Chief Justice Donald Beatty and Justice John Kittredge.
Beatty voted for the Church side while Kittredge voted against the Church. Both men agreed that the parishes had acceded to the Dennis Canon (four of the five justices agreed) but while Beatty said the parishes could not revoke their accessions, Kittredge held they could, and did, repeal their accessions to the Canon. Thus, while Beatty concluded that the Episcopal Church owned the 29 parishes and the Camp, Kittredge maintained the Church did not own them. Beatty joined with Pleicones and Hearn to form the majority on the court to rule in favor of the Episcopal Church. Kittredge and Toal formed the minority and issued dissenting opinions.
The two new justices who replaced Toal and Pleicones on the court are George C. James, Jr. and John Cannon Few.
James lives in Sumter where he is a lay leader in the Trinity United Methodist Church and active in numerous other local organizations. Find the SCSC blurb about him here .
Find the SCSC bio on Few here . One interesting point about Few is that he married Stephanie Yarborough in St. Philip's Church, in Charleston, in 2019. Since this was a remarriage on both parts, they had to go through a process to get permission of Bishop Lawrence for the marriage to take place in the church.
How these two new justices will interface with the whole matter before them now is something that cannot be known, at least not to a layperson as myself. I suppose it would take an expert in the state courts of SC to tell us how their past opinions might foreshadow their leanings on the question of the ownership of the church properties.
A highly important factor that must be considered here is the voting. Unless the court brings in a temporary "Acting Justice," to raise the number to five, there will be four justices to decide this appeal. A two-to-two tie would leave Dickson's Order in place (a majority has to vote to overturn). Since the matter before the SCSC is the appeal of Dickson's ruling, the vote will be whether to sustain his Order or to overturn it. To sustain it, the court must vote two or more of the four. To overturn it, the court must vote three or more of the four. Thus, the Church side has the harder challenge here. If we assume Beatty will vote for the Church and Kittredge will vote for the breakaways (as they did in 2017), the whole matter is in the hands of the two new, and unknown, justices. Everything rests on their opinions. The Church needs both of them. The breakaways need only one of them.
In my opinion, there are two ways of approaching the matter at hand, as a cultural issue and as a judicial issue. I think the settlement will depend on where the justices place the fundamental importance of this case.
As everyone knows (at least those who have read my history), the direct cause of the schism was the blessing of same-sex unions. When the Episcopal Church moved to this in 2012, the clerical leadership of the old diocese took the opportunity to lead the majority of the laity out of the diocese and the Episcopal Church. In short, the Episcopal Church championed equality for and inclusion of homosexuals persons in the life of the church. The reactionaries in the diocese of South Carolina opposed any acceptance of homosexuality and created the schism to prevent these reforms from applying to the majority of the old diocese. This was a part of a culture war that has been waging in America for the past seventy or so years. To be simplistic, the basic cultural issue is stark: for or against inclusion of non-celibate homosexuals in the life of the church. Since the issue of homosexuality sparked the schism with its ensuing litigation, the justices may choose to see the whole litigation as fundamental to the culture war. If so, their attitudes toward homosexuality will skew their opinions.
On the other hand, there is a very great issue here of jurisprudence. Under the long-established order of the court system, there is a hierarchy in the state courts topped by the supreme court. A ruling by the state supreme court is just that, supreme in the state. The 2017 opinion of the SCSC became the law of the land when the court denied a rehearing and the U.S. Supreme Court denied cert thus ending any possible appeal. Since it is the law of the land, it cannot be changed or re-litigated.
In my view the circuit court made two violations of the state judicial system. In one, it refused the Remittitur from the SCSC. I do not see how a lower court has the right to refuse an order from a higher court. In another, the circuit judge re-litigated the case and substituted his own finding that the 29 parishes had not acceded to the Dennis Canon in place of the state supreme court's finding that the 29 had acceded to the Dennis Canon. He directly contradicted the majority of the SCSC on the question of accession to the Dennis Canon. What right does a circuit judge have to replace a judgment of a higher court?
Thus, if the SCSC now upholds the Dickson Order, it will establish two landmark and severely dangerous precedents, that a lower court can refuse to accept a remit order from a higher court, and a lower judge can reject and replace a majority decision of a higher court.
If the SCSC allows Dickson's Order to stand, this will upend the entire state court system in South Carolina. Higher courts will no longer have superiority over the lower courts. No order of the state supreme court would have to be accepted and implemented. There would be never ending litigation thus destroying the entire concept of jurisprudence in the state. In short, no decision of a state court would ever be final. If so, what would be the purpose of having courts at all? No law could ever really be enforced.
Before they vote on the Dickson Order, the justices of the South Carolina Supreme Court ought to consider long and hard what the effects of their decision will be. In my view, upholding Dickson will be catastrophic to jurisprudence. It would establish an unbelievably dangerous precedent that could not be erased.
Let us bear in mind too that the United States was the first country in the world established on the principle that the civic state must be entirely separate from religious institutions. This concept of the separation of church and state was enshrined in the First Amendment of the Constitution. Over the years, it has served us Americans phenomenally well. Now, it is part and parcel of our American character.
No court has the right to interfere in the affairs of a religious institution. Moreover, the federal court has declared the Episcopal Church to be hierarchical. A court in South Carolina should not decide what the Episcopal Church can and cannot do in terms of its own internal structure. The Church has the right to decide its own rules. As an hierarchical body, the Episcopal Church has the right to enforce its own law, as the Dennis Canon. The civic state must respect this if it is to abide by the First Amendment.
The fundamental judicial issue here is freedom of religion. Every religious institution in America ought to be concerned about the possible infringement of the state on their rights. The Episcopal Church certainly is. The Diocese of South Carolina certainly is. Finally, the justices of the South Carolina Supreme Court ought to be equally concerned. We must maintain the separation of church and state. It is crucial to the future of freedom in America. This is the real crisis looming in the South Carolina Supreme Court.
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My usual disclaimer. I am neither a lawyer nor a legal expert. What I offer here is only opinion.