REFLECTIONS ON THE SC SUPREME COURT DECISION OF APRIL 20, 2022

On today, 20 April 2022, the South Carolina Supreme Court handed down its long-awaited DECISION on the Episcopal Church's appeal of Judge Edgar Dickson's order of 2020. The SCSC held a hearing for this appeal on Dec. 8, 2021. Dickson had found all in favor of the secessionist diocese, now calling itself the Anglican Diocese of South Carolina. 

Today the SCSC affirmed in part and reversed in part Dickson's order.

A recap of events:

---2017, the SCSC issued a DECISION with three majority opinions: (1) 8 parishes owned their own properties, (2) 28 parishes were property of thre Episcopal Church, and (3) Camp St. Christopher was property of the Episcopal diocesan trustees (see p. 77).

---SCSC denied a rehearing. SCOTUS denied cert (appeal).

---SCSC issued a Remittitur and sent its decision to the circuit court (Judge Dickson).

---2020, Dickson interpreted the 2017 SCSC decision to mean that all property, local and diocesan belonged to the secessionist parties.

---The Episcopal Church and diocese appealed Dickson's order to SCSC.

---Today, SCSC published its decision upholding some and overturning some of Dickson's order. This replaces the 2017 decision  and Dickson's order.

In a nutshell, today's decision keeps all of the 2017 SCSC opinion except that it expands the number of parishes in the hands of the secessionists from 6 to 22. In other words, it adds 15 parishes to the list of local churches not property of the Episcopal Church. 

To begin, however, Justice Few, writing for the court, declared that the SCSC 2017 decision was not final:

The primary issue before the Court today, however, is the first question: whether the 2017 Court made a final decision as to all real property owned by the twenty-nine Parishes. We hold it did not.

This was a fundamental defeat for the Episcopal side and victory for the secessionists who had argued all along that the 2017 decision had left the property question unresolved.

In fact, the 2017 decision stated explicitly the majority decisions on property (on page 77):

1) with regard to the eight church organizations which did not accede to the Dennis Canon, Chief Justice Beatty, Justice Kittredge, and I would hold that title remains in the eight plaintiff church organizatrions; 2) with regard to the twenty-eight church organizations which acceded to the Dennis Canon, a majority consisting of Chief Justice Beatty, Justice Hearn, and Acting Justice Pleicones would hold that a trust in favor of the national church is imposed on the property and therefore, title is in the national church; and 3)with regard to Camp St. Christopher, Chief Justice Beatty, Justice Hearn, and Acting Justice Pleicones would hold title is in the trustee corporation for the benefit of the associated diocese.

The fact stands that the SCSC did make a final decision on property in 2017. It issued a Remittitur to the lower court to carry out its majority decision. If it had wanted the lower court to relitigate the property issues it would have issued a Remand order or at least a directive to the lower court of what it expected. It did not.

Judge Dickson recognized the existence of the majority decisions when he ordered the implementation of the first one, on the disposition of the eight parishes which were found to own their properties. He refused the other two.

Today's decision had no problem with numbers one and three, only with number two. So, it too recognized the existence of three majority decisions from 2017.

So, if the only real change from the 2017 to the 2022 decision is on property disposition, how does today's order go about it? What has changed?

It all boils down to one question---accession to the Dennis Canon. The Episcopal Church adopted the Canon in 1979. It required that all local property to be held in trust for the Episcopal Church and its local diocese. If a parish voted to leave TEC, it would forfeit its property to the trustees. The Diocese of South Carolina also adopted its own version of this Canon in 1987.

What Justice Few tries to do is rule on whether each individual parish had agreed to this Canon.

There are several problems with this approach. First and foremost, the Episcopal Church is an hierarchical organization governed by a General Convention then a diocese. All parishes and missions are subject to the authority of the national church and local diocese. Parishes are not independent units able to pick and choose which rules they will follow. Time and again, courts have ruled TEC to be hierarchical. This includes the SCSC, in 2017 as well as the federal court in Charleston.

Next comes the problem of defining accession to the Dennis Canon. Under hierarchy, and the First Amendment, local parishes do not have the right to deny the Dennis Canon. However, the litigation in SC has always been about whether the local parishes had acceded to the Canon under state law. We have had three widely varying opinions so far. In 2017, the SCSC said 8 local parishes had not acceded to the Dennis Canon while 28 had acceded to it. In 2020, Judge Dickson ruled that no parish had acceded to the Canon. Now, in 2022, the SCSC says 15 of the 29 parishes that the 2017 court said acceded really had not. So now, the SCSC declared a total of 22 local churches did not accede while 14 did.

The reason for this confusion is the vagueness of the state law. SC law says a deed holder has to create in writing, in "some legally cognizable form" a trust for another party. It cannot be imposed from the outside. "In writing" and "legally cognizable" were not defined or clarified. They remain subject to interpretation. And, there is the core of the problem. Whose interpretation?

All three interpretations (2017, 2020, 2022) were drawn from the same documentary evidence introduced in the court record. 

In today's decision, Justice Few goes case by case among the 29 parishes giving his opinion on whether the parish had set up a trust for the Episcopal Church. Here he starts splitting hairs. Actually none of them made an explicit written document creating a trust for TEC. 

Few declared that accession to the Dennis Canon did not have to be explicit but had to be what he considered close. Here is where interpretation crept in. And so he looked for words in the parish documents that he thought were or were not close enough. Words that failed the test were such as:  accordance, accord, acknowledge, purpose, pledge, pursuant, and recognition. Parishes that had incorporated these words into their allegiance to the Episcopal Church had not acceded to the Dennis Canon, he ruled. Never mind that all parishes were part of the diocese that had set up its own Dennis Canon in 1987. Accordingly, Few reckoned that 15 parishes were in the failing group, that is, they had not acceded to the Dennis Canon.

Then, Few found that 14 parishes had incorporated certain words in their documents:  "adopt," "accede" and "Canon." If a parish used these, it automatically acceded to the Dennis Canon and set up a trust for TEC and its diocese. It did not seem to matter if the word "Canon" only appeared in "The Constitution and Canons of the Episcopal Church" which is actually the governing document of the national church. There is another for the diocese.

Thus, the whole decision on whether to throw a parish into one pile or the other rested on the words they had used in documents from years ago. I am sure there are many parish leaders today who wished their forebearers had used different words. What a difference a word would have made.

And so, we have some questionable interpretations from parish to another. For instance, when St. Helena's says "this parish from henceforth pledges to adhere to the doctrines, discipline, and worship of the Protestant Episcopal Church in the United States of America" it is not good enough to mean the Dennis Canon. Even terms more explicit were often not good enough, e.g. All Saints of Florence, "The By-Laws of All Saints' Church are drawn with the recognition that as a part of the Episcopal Church in the United States of America, we are bound by the Constitution and Canons of the National Church and the Constitution and Canons of the Diocese of South Carolina." Good enough for accession to the Dennis Canon? No. All Saints was tossed into the 15 stack of non-accession.

Millions of dollars worth of property is being decided by splitting hairs. What constitutes accession to the Dennis Canon is a matter of opinion. Few's is not convincing, at least not to me. It is clear all of these local parishes were part and parcel of the diocese and the national church. All of their documents said as much, so parsing a word or phrase should be extraneous.

Another puzzling and bewildering part of today's decision is the page of the Chief Justice, Donald Beatty. In 2017, he joined the majority in all three decisions, the only justice to do so. Most importantly, he wrote in his opinion (p. 37-38):  "However, I agree with the majority as to the disposition of the remaining [28] parishes because their express accession to the Dennis Canon was sufficient to create an irrevocable trust."

In today's decision, Beatty is saying something else. He wrote, "As I explained during oral argument in this case, I did not vote to end the case in 2017. Rather, I intended to reserve final judgment as to each individual Parish until the circuit court decided on remand whether each individual Parish acceded to the Dennis Canon." 

With all due respect to the Chief Justice, the published and printed record from 2017 shows something different. He did join the majority then. The majority said very clearly that 28 parishes had acceded to the Dennis Canon. In the quote above, Beatty had said their express accession was sufficient. He did not remand the case to the circuit court. The SCSC issued a Remittitur. That is not a remand. A Remittitur is a directive to implement a decision. The SCSC did not direct the lower court to decide what parishes had acceded. That decision had been made by the majority in the 2017 opinion. It seems to me Beatty is inexplicably inconsistent between the 2017 and 2022 decisions.

Today's ruling also contains several factual errors. In one, Few said the schism occurred in 2010. It occurred in 2012, Oct. 15, 2012 to be exact. In another, he wrote the Episcopal diocese organized after the schism. Actually, it reorganized then. It had existed since 1785. In another, Christ, St. Paul's of Conway apparently means Christ/St. Paul's of Yonges Island. St Paul's of Conway was one of the 8 parishes the 2017 decision had found owned its own property.

So, what now? The only appeal possible for today's decision would be to the U.S. Supreme Court, but on what basis?SCOTUS has been entirely reluctant to take Episcopal Church cases. I expect the chance they would take an appeal from the SC Supreme Court would be nil. So, it is all but certain this is the end of the road as far as the state courts in South Carolina go. Soon we can expect the federal appeals court to take up the secessionists' appeal of Judge Gergel's order which found all in favor of the Episcopal Church side. I expect the chance the appeals court will uphold Gergel to be very high. If Gergel stands, the Episcopal side will own the legal entity of the old diocese. 

It looks as if we are about to arrive at the end of a very long and tortuous road. It has been nearly ten years. God only knows how much money has been spent. We do know the heartache and brokenness.

And all this to keep gays in the closet and women in the kitchen. What a waste. What a shame.

To put this in context, the anti-Episcopal movement began in earnest in the 1990's. Its aim was to destroy or greatly diminish the Episcopal Church in order to reduce its "liberal" influence in American life. This hostile movement found fertile ground in lower South Carolina. Hence the schism of 2012 and the ensuing legal war. The Church's opponents have not destroyed the Church but they have gone a long way to wound her in one of her oldest and strongest bastions. In this regard, we would have to admit the anti-Episcopalians have finally won a certain measure of success. The schism has rent the church asunder in lower South Carolina. Yet the Episcopal Church survives and shouts as loudly as ever for love of God and of our neighbors.