JUSTICE AND THE COURTS OF SOUTH CAROLINA

It looks as if the litigation between the Episcopal side and the Separatists is winding down to conclusion (for simplicity's sake, I will refer to the two sides as "Episcopal" and "Separatist"). The two parties have been in court for ten long years. The South Carolina Supreme Court has been handling the case for eight of these years. Now that the SCSC has issued a last ruling (although apparently nothing is really "final" with SCSC), this is a convenient moment to take stock of the whole course of the litigation and reflect on the many turns along the long and winding road. Finally, what does this experience tell us about the courts of South Carolina?

First, my usual disclaimer. I am not a lawyer or legal expert. What I offer here is a layman's opinion and interpretation.

We cannot say that the litigation is over. The Separatists' Betterment suit is still pending in the circuit court. They are suing TEC for recovery of the improvements made in the parishes returned to TEC. We are also waiting on the enactment of the Remittiturs from the SCSC to the local court issued in April of 2022 and May of 2023. Otherwise, it does seem that the two bishops have agreed to end all other litigation as of their joint statement of September 2022. Apparently this means the dozen local missions that had not been a part of the litigation but had adhered to the Separatist diocese will remain with the new diocese.

The litigation followed two courses, federal and state. These provide a stark contrast. The federal case eventually went to District Judge Richard Gergel, in Charleston. He gave a model of a judge's work. He was thorough, precise, and concise. He followed the First Amendment of the U.S. Constitution. It required the separation of church and state. The state is not allowed to meddle in the internal workings of a religious institution. On Sept. 19, 2019, he issued a decision holding that the Episcopal Church is an hierarchy and therefore the Episcopal diocese was the only heir of the historic Diocese of South Carolina. In addition, he issued an Injunction forbidding the Separatists from claiming to be the continuation of the old diocese. He went on to enforce this Injunction twice holding the Separatists in contempt of court. (The Separatist lawyers appealed Gergel's order to the court of appeals but withdrew this in the agreement of last September.) 

On the other hand, the state courts have been all over the place in dealing with the litigation. Chaos is the word that first comes to mind. The state courts supposedly operated under the "neutral principles" approach, that is, that courts may apply state property laws "neutrally" to settle property disputes in a religious institution. However, the lines of this are not clear and there is great dispute about how far a court can go in ruling on a church property dispute. The First Amendment takes precedence. 

The church case has been in circuit court twice. Both times, the local judges seems bewildered by the case and reluctant to rule on it. I suspect too they came under a great deal of pressure from local interests to rule in the Separatists' favor. They did rule, entirely for the local interests. In both cases, the SCSC discarded all or part of these circuit court decisions.

In its eight years of handling the case, the SCSC held two hearings and issued three different decisions, each one contradicting and replacing the one(s) before. To my knowledge, no supreme court in the United States has ever issued a written decision and then replaced it with a conflicting one in the course of a case. The U.S. Supreme Court has reversed itself, but only when handling two different cases. This happened most famously with integration and abortion. In 1896 SCOTUS ruled in favor of separate but equal. In 1954, it reversed this and ordered school integration. In 1973 the court declared a woman's right to abortion. In 2022, the court reversed this and said states could restrict a woman's right to abortion. In both of these instances, the court was dealing with two distinct cases. The SCSC was dealing with the same case when it reversed itself in written decisions during the course of deliberations, and not once but twice.

On August 2, 2017, the SCSC published a 77-page decision on the church case. It gave three majority rulings: 1-7 parishes to keep their properties trust free, 2-29 parishes to return to Episcopal Church ownership, and 3-Camp St. Christopher to belong to the Episcopal diocese.

The crux of the matter was the fate of the 29 parishes. The dispute was not really about the seven, or the Camp. The 29 included all of the large and old parishes of the historic diocese, all of which had gone along with the separation from the Episcopal diocese. 

Now, the strategies of the two sides veered off. The Episcopal side simply wanted the local court to implement the SCSC decision. On Nov. 17, 2017, the SCSC sent a Remittitur to the circuit court. A Remittitur is a court order for a lower court to enact a higher court decision. This was exactly what the Episcopal lawyers sought, and fought for in the next two years.

The strategy of the Separatist side changed as events unfolded. At first, they tried to get Justice Kaye Hearn's opinion removed from the decision on the grounds that she was biased since she was a member of an Episcopal church. This failed as the other justices took offense at the criticism of a fellow justice. They tried to get a rehearing, and this too failed. The SCSC denied a rehearing (by a 2-2 vote). The SCSC went on to issue a Remittitur to the local court. 

Then, the Separatist lawyers appealed to the U.S. Supreme Court which rejected them, in June of 2018. Having failed in the SCSC and SCOTUS, the lawyers turned their sights on the circuit court which now had the case, Judge Edgar Dickson. Their apparent goal was to get the local court to agree to remove the 29 parishes from the SCSC decision. They launched an all-out barrage on the SCSC ruling. They zeroed in on the opinion of Justice Donald Beatty (later Chief Justice) making it seem that he really meant they had not adopted the Dennis Canon when actually he had voted with the majority that they belonged to TEC. (Beatty had even voted against rehearing and to send the Remittitur.) The lawyers asked Dickson to make his own interpretation of the SCSC ruling. Dickson seemed very reluctant to handle the case (when I was in attendance once he said he saw this matter "through a glass darkly"). He did recognize the majority decisions of the 2017 decision as he got the lawyers to agree to effectuate the one for local ownership of the seven parishes. He ignored the other two majority decisions in the 2017 opinion. After more than two years, numerous hearings, and countless papers, Dickson finally ruled on June 19, 2020. On the whole, he returned to the circuit court order of 2015, which the SCSC had discarded off hand. The Separatist lawyers had won a huge victory. They got Dickson to agree that all parishes were free of trust to TEC. All 29 were off the hook. The Episcopal lawyers appealed Dickson's order to the SCSC.

What happened next was the strangest part of all. On December 8, 2021, the SCSC held a hearing on Dickson's decision. It was mostly a new court at SCSC. Two justices (Pleicones and Toal) had retired and one (Hearn) had recused herself. Two new justices had been placed on the court and a temporary justice was brought in to fill Hearn's place. Only two justices (Beatty and Kittredge) remained from the panel that had issued the 2017 decision.

The hearing surprised everyone and stunned the Episcopal lawyers. The justices had no trouble with two of the three majority decisions of 2017 (the seven and the Camp) but they refused to accept the one for the 29. By a 3 to 2 vote in 2017, the SCSC had ruled 29 parishes had adhered to the Dennis Canon and were property of the Episcopal Church. In the new hearing, justices raised the issue of whether the parishes had actually adhered to the Dennis Canon (the majority in 2017 agreed they had). Neither Kittredge nor Beatty arose to defend the 2017 decision. In fact, Beatty seemed to deny he said what he said in his opinion. In his written part of the decision, he had sided with the majority that the 29 belonged to TEC. Kittredge had agreed, in 2017, that the 29 had acceded to the Dennis Canon but he maintained they had the right to revoke their accessions, and they had legally done so. In 2017 both Beatty and Kittredge had said the 29 had adhered to the Dennis Canon, but now they seemed to ignore this. 

At the same time the court wondered aloud if the parishes had acceded to the Dennis Canon, it agreed that TEC was hierarchical. They had no problem that the Episcopal diocese was the continuation of the historic diocese and that it owned the Camp. The other two majority votes of 2017 were never in question. The seven were not at issue and neither was the Camp. The only dispute was over the 29 parishes. Of course, the principle of hierarchy meant that the national church was over the diocese and the diocese was over the parish. Under this, it did not matter if a parish adhered to the Dennis Canon. It was automatically covered by the Canon from the moment the national church had adopted it in 1979 (and the diocese of SC adopted its own version in 1987). It was contradictory for the court to hold hierarchy and to judge whether a parish had adopted the Dennis Canon, but whether this ever occurred to the justices was not apparent. 

A new decision of the SCSC was issued on April 20, 2022. Justice Few, writing for the court, reviewed each of the 29 parishes in question as to whether they had adhered to the Dennis Canon. He looked for key words, as "accede" and "adopt" and discounted other words even if they had arguably meant the same. The new "final" decision held that 15 of the 29 had not agreed to the Dennis Canon while 14 had. The SCSC issued a Remittitur to the circuit court to implement the decision.

So, the new ruling displaced the 2017 majority decision and removed 15 from TEC control. These just happened to contain all of the large and old parishes. This was the moment of victory for the Separatist side. This was the crux of the matter. The schism had never been about the diocese. It had never been about the Camp. It had always been at heart about the grand old parishes keeping their property away from the Episcopal Church. St. Philip's Church, of Charleston, had been at war with the national Episcopal Church since the 1950's, when coincidentally, TEC adopted the civil rights movement and the Diocese of SC admitted its first historically black parish. At long last, St. Philip's, St. Michael's, St. Helena's, and the rest could rejoice that the mother church could not control the local property. They were finally free of the hated liberal forces "from off." 

Having won the heart of the matter, the Separatist diocese threw in the towel with the SCSC. They refused to appeal the loss of the other 14 that the court had recognized as belonging to TEC. They diocese left them to their own devices. This spoke volumes about this schism, what it was really all about. 

Of the 14, 8 filed appeals, on their own, to the SCSC. As it turned out, the April decision was not "final" after all. The SCSC took up the appeals of the 8. On August 17, 2022, the SCSC issued its third ruling on the church case and agreed that 6 more (of the 14) were free of TEC trust control. Some of the parishes had been yo-yoed back and forth several times. In the end, the SCSC left 8 local churches, of the original 29, under TEC ownership. Both sides appealed some parishes but on May 24, 2023, the SCSC denied all appeals and sent a new Remittitur (the third) to the circuit court. 

Now, we come to the question of why the state court, particularly the SCSC, behaved as they did in the church case. Moreover, why was their such a contrast between the handling of he federal court and the state courts? In mulling this over, I can come up with only two plausible answers. Perhaps you can think of more. It seems to me to be either incompetence or politicization. Incompetence is not likely because all judges and justices spend years as accomplished and successful lawyers before they take the bench. They are well aware of the law and of jurisprudence in the state. I would not vote for incompetence as the answer.

That leaves politicization. As everyone knows, courts in general are growing ever more political. Nothing said this better than the recent addition of three justices to the U.S. Supreme Court. That court now has a 6-3 conservative majority that is carrying out a definite reactionary agenda, the most visible part of which is the overthrow of the woman's right to control her own body. SCOTUS has become a key part of the culture war and a major power base for the anti-democratic reactionaries. This is not to say that all judges are political. My observation is that many of them are not. Nevertheless, SCOTUS has lost its reputation for impartiality. 

South Carolina is historically a very conservative state. The Republican party is the bastion of conservatism and has a super majority in the state legislature along with a virtual lock on state offices. In SC all judges and justices are elected by the legislature. What is more, they are elected for 10 year terms and can be reelected. This makes all state judges in a sense political. 

An episode happened recently that may illustrate the political nature of the SC courts. A few months ago, the SCSC voted 3-2 to overturn the 2021 state law banning abortion after six weeks of pregnancy. That opinion was written by Justice Kaye Hearn, the only woman on the court. Shortly afterwards, early this year, Hearn had to retire (mandatory at age 72). The state legislature promptly elected a (white) man to fill her vacancy. The SCSC is now the only state supreme court in the United States that is all male. There are four white men and one black man (he has to retire next year) on the SCSC. Interestingly, the legislature has just passed a new six week ban of abortion which is certain to arrive at the SCSC eventually. I think it is reasonable to assume the new court will uphold the new state law. I doubt that is is an accident that there is no woman on the SC high court right now. Since females make up 52% of the population of South Carolina, this means the majority of the people of that state have no representation on the highest court of the state.

How does the SCSC handling of the church case compare with that of the other state supreme courts where schisms occurred? Of the four other schisms in the Episcopal Church, only one was judged by a state supreme court, Texas. There, the local court and the appeals court had sided with the Episcopal side. The Texas Supreme court, whose members are elected state wide, is decidedly conservative. It ruled entirely in favor of the local separatists, in the Fort Worth case, on the basis that, under state law, a trust can be revoked by one party unless the trust expressly forbids it. The Dennis Canon had no such provision. So, the cases of South Carolina and Texas are not at all comparable. 

It seems to me that the SCSC has set dangerous precedents in its handling of the church case. First and foremost, it has demonstrated that no majority decision of the SCSC is final. The SCSC can reverse itself within the course of the same case and replace its first majority decision one, or even more, times. Furthermore, a lower court can ignore a Remittitur and reinterpret the case. The precedents the SCSC has set may achieve short term goals but could prove highly problematical in the long run. They could seriously destabilize the whole court system and the whole rule of law in the state. 

The state courts of South Carolina spent ten years (so far) on the church case. The SCSC spent eight of these. This was not their finest hour.

I think at base the problem in South Carolina was an unsuccessful attempt to navigate the separation of church and state. The courts tried to juggle two principles, separation of church and state, and neutral treatment, and never found a reasonable and stable approach to do that. The federal court had no problem at all with that. Hence, their lurching back and forth of the state courts, all the while, I would imagine under tremendous pressure of local interests to rule favorably. Judging from the fact that the only significant change the SCSC made along the long way after its initial ruling was to remove 21 of the 29 parishes from Episcopal Church ownership, we have a right to question the impartiality of their judgments.

Bottom line. The first phrase of the First Amendment to the United States Constitution is there for good reason. It is best for both church and state that we keep them apart. If the episode of the church litigation in South Carolina tells us anything, it tells us that.