LOOKING FOR ORDER IN CHAOS

"Order in the court" is something sorely needed in the church case in South Carolina. 

I must confess, I have always hated disorder in things because disorder has no discernible meaning or comprehension. It is just confusion. Order, on the other hand, gives us a reasonable pattern that we can comprehend. It has meaning. Now, order by itself is not inherently good. A mafia family may have a very clear order but the effect of this order would not be good. And so we must strive not just for order, but for the moral order. Thus, for the past two days I have been searching for the order in the work of the South Carolina Supreme Court. Unfortunately, I have not gotten very far.  I refuse to give up. I spent practically my whole life of nearly eighty years looking for order in history. I am not about to quit now. Anyway, here are my thoughts on the chaos in the SCSC as of this moment for what they are worth.

My usual disclaimer---I am not a lawyer or legal expert and what I offer here is only opinion.

Our first challenge is to understand the three different opinions issued by the SCSC. What do they say? What do the justices say they say? This is a great deal of the problem causing the chaos in the court.

Opinion # 1. August 2, 2017. Three majority decisions: 1-28 [actually 29] of the 36 parishes in the suit are property of the Episcopal Church, 2-8 [actually 7] of the 36 parishes in question own their properties outright, and 3-the old diocesan properties belong to the Episcopal Church diocese. All three of these decisions were listed on the last page of the Opinion; each supported by three of the five justices.

The justices denied the breakaways' petition for rehearing and sent a Remittitur (an order for implementation) to the lower court. The breakaways asked the U.S. Supreme Court to take the case; SCOTUS refused. At this point the Aug. 2 Opinion became the closed law of the case.

The circuit judge ignored the order of Remittitur. He recognized only one of the three majority decisions, the one about the seven parishes; and he ordered its implementation. He reversed the other two decisions and found all parishes outside TEC control and all diocesan properties to be with the breakaways.

Opinion # 2. April 20, 2022. Denied the finality of the Aug. 2 decision. Declared that the Aug. 2 Opinion had not reached any conclusion but had given only five different opinions, none of which gained a majority. Ignored the fact that there were three majority decisions in the Aug. 2 paper. Implied that the rulings of whether the individual parishes fell under the Dennis Canon remained to be determined even though the justices on Aug. 2 had declared a result for all of the 36 parishes in question.

Two justices in 2022 had been on the 2017 panel (Chief Justice Beatty, and Justice Kittredge). Neither one defended the Aug. 2 Opinion per se. Beatty claimed he had not supported the majority decision even though he was the only one of the five justices in 2017 to vote in the majority on all three points. In the 2017 paper he had said he joined the majority that the 28 [29] had formed irrevocable trusts for TEC. In 2022 he declared the circuit judge had done what the SCSC expected of him even though the SCSC had assigned a Remittitur to the lower court. In 2017 Justice Kittredge had said the 29 parishes were under the Dennis Canon. He now joined the opinion that only some of them were. On the issue of the 28 [29] both Beatty and Kittredge appeared to reverse their opinions between 2017 and 2022. The reasons for this remain hidden.

The Opinion of April 20, 2022, was written by Justice Few who had had nothing to do with the 2017 Opinion. He joined the court later. He went parish by parish looking at the words in their documents for evidence of adherence to the Dennis Canon. He took a strict approach which boiled down to two words: accession and adoption. If a parish used a form of one of these words, they were under the Dennis Canon. If they did not, they were not under the Dennis Canon regardless of what other declarations they made to follow the laws of the Episcopal Church. He concluded that 15 of the 29 had not fallen under the Dennis Canon while 14 had done so. He ordered the 14 to prepare and register the legal documents recognizing Episcopal Church ownership of their properties. He declared absolute finality in the case: From our decision today, there will be no remand. The case is over.

Thus, the Apr. 20, 2022 decision replaced the 2017 majority order that 29 parishes were property of the Episcopal Church. It was now 14. This was the only significant change from 2107. The new decision retained the other two majority decisions of 2017. It kept TEC ownership of the old diocesan properties. The only real change in Opinion # 2 was to move 15 parishes from TEC ownership to local ownership. It just so happened that most of the big parishes wound up in this group. Coincidence?

Opinion # 3. August 17, 2022. This paper revoked two points of the April order. It reopened the case after it had declared the case closed. It removed 6 parishes from the list of the 14 that it had ordered to register the documents of Episcopal ownership. It did so by greatly narrowing the criteria under which a parish could fall under the Dennis Canon. It essentially declared that any parish that had promised loyalty to the Episcopal Church before 1979 (TEC's adoption of the Dennis Canon) or after 2006 (trusts made after 2006 could be unilaterally revoked under state law) were exempt from the Canon. This had not been a part of the supposedly final decision of April 20. Thus, the August decision denied and replaced the two earlier SCSC decisions of 2017 and 2022.

As it stands now (and who knows how long this will last?) two of the three majority decisions of 2017 remain intact: the Episcopal Church diocese owns the pre-schism diocesan properties, and 2-7 parishes own their own properties. It is the third majority decision of 2017 that has been essentially reversed. In 2017, the SCSC recognized TEC ownership of 29 of the 36 parishes in question. By Opinion # 3, the SCSC recognized TEC ownership of 8 of the 36. Between August of 2017 and August of 2022, the SCSC removed 21 parishes from the Episcopal Church diocese of SC. This is the only big change between 2017 and 2022.

The looming question of the day, then, is why the state supreme court moved the bulk of the local parish properties from the Episcopal Church to the local parish. This goes to motive and that is something that is ultimately hidden to us. We simply cannot know the justices' private reasons. Their stated reasons are not convincing. Their parsing of words to reach their conclusions is strained at the least. Their offhand denials and reversals of earlier majority decisions is bewildering, and I think a bit suspicious. All we can know is the political sources of the state courts in South Carolina. All state judges and justices are elected by the state legislature for terms. Everyone knows South Carolina is a very socially conservative state virtually controlled by Republicans. Everyone also knows the schism is part of the culture war, the Episcopal side for freedom, equality, and inclusion of gays, transgendered, and women, and the breakaway side against. It is not surprising that the majority public opinion in South Carolina favors the breakaways.

It strikes me that the SCSC decisions are not just chaotic, they are internally contradictory. On one hand, they justices viewed the parishes as able to accept or deny a canon of the national church. They are now saying all the parishes had the right to chose or not the Dennis Canon. On the other hand, the justices viewed the Episcopal Church diocese as the heir, and owner, of the pre-schism diocese and its property. This was because the Episcopal Church was hierarchical. So, a parish does not have to obey church law but a diocese does. This is contradictory. Either the Episcopal Church is hierarchical (it is) or it is not. If it is hierarchical, it rules over all lower units as dioceses and parishes. They are not independent units allowed to govern themselves outside of the laws of the General Convention. If TEC decides on dioceses, it also decides on parishes.

And so, what all this suggests is that the fight in South Carolina has always been about the local churches. It was never about the diocese. In this, the breakaways' lawyers have pulled off a stunning success, snatching victory from the jaws of defeat. First defeated at 29 of the 36 against them, they are now victorious at 28 of the 36 for them. Hats off to these intrepid attorneys. 

Of course, this story is also full of what-might-have-beens. I see two major mistakes the breakaway side made along the way. In the first, they off-handily dismissed the TEC offer in June of 2015 to swap all of the local parishes for the diocese. If they had taken that, all 36 parishes would now be self-owning. Why they rejected the offer is another mystery. My only guess is that they thought they would win it all in the state supreme court. The were shocked at the 2017 decision. In the second, the 7 parishes that chose not to petition the SCSC for rehearing after the April 2022 decision. Perhaps there was a good chance that at least some of them could have won, just as 6 did win their petitions for rehearing, and their properties. Why some parishes chose not to file for rehearing is yet another mystery. I supposed we would have to ask them.

The big mistake on the TEC side was to litigate this case as individual parish accession to the Dennis Canon. TEC is hierarchical and as such it governs the local parishes. Local churches do not have the right to pick and choose which church laws they will follow and which they will not. That is not the way hierarchy works. Leaving it up to whether an individual parish had acceded to the Dennis Canon opened the door to subjective judgments and that is where we arrived in 2022. The justices then narrowly defined the criteria. If the church lawyers had argued all along for hierarchy, whether a parish had acceded to the Dennis Canon would not have been an option. 

So, if we are at end in state court (and that is saying a lot) where do things stand in the schism? It is roughly half and half. The Episcopal diocese has the pre-schism diocese and all of its properties and other assets, particularly Camp St. Christopher. It also has a fraction of the parishes (a quarter of the parishes in dispute). It is in the Anglican Communion. The separatist side has the vast bulk of the local churches including all of the large parishes (except Grace) and the big majority of the communicants from the old diocese. It is not in the Anglican Communion.

The essential difference between the two? It is now and always has been social policy. The breakaways broke away to keep homosexuals from equality and inclusion in the life of the church. Throw in the transgendered, and even women after they joined the Anglican Church in North America which does not allow women to hold positions of authority over men. Of course, the breakaways complain loudly that it is not about gays, it is about the Bible. This is just rationalization. It is about gays, always has been.

These are my thoughts of the day. I am going to keep on looking for order.

One other thought---a lot of people are asking if the legal fight in the SCSC is over. I wish I knew. Twice the SCSC said the case was closed and then turned around and reopened it. In 2017 they refused rehearing. In April of 2022 they said case closed without possibility of reopen. Both times they reneged and reopened the case to change the previous decision(s). Who's to say they won't do it again? The one thing this court has established absolutely is that there is no finality with them. If I were a lawyer on either side, I would throw all the spaghetti I could find at the wall to see what sticks.    

Your thoughts are just as important as mine. Tell me what you think. Send to email above. Peace.