REFLECTIONS ON JUDGE GOODSTEIN'S "FINAL ORDER" OF FEB. 3, 2015
By Ronald J. Caldwell, PhD, Professor of History, Emeritus
On February 3, 2015, Judge Diane Goodstein issued her "Final Order," or decision, in the case of the Protestant Episcopal Church in the Diocese of South Carolina (DSC) against the Episcopal Church (TEC) and the Episcopal Church in South Carolina (ECSC). The trial was held last July in the circuit court of South Carolina, Dorchester County, St. George SC. There was no jury. Judge Goodstein alone heard the presentations and issued a judgment, called the Final Order.
That Order is now the law and will remain such until and unless it is overturned on appeal. We must all respect it. At the same time we are allowed to have our opinions about it.
The court's decision was about as public opinion expected. I doubt that anyone was surprised by it. The DSC lawyers had chosen this particular court, in rural Dorchester County, in which to enter their lawsuit against TEC after direction by the DSC Standing Committee in November of 2012 to initiate legal action for DSC as a preemptive strike against TEC. DSC attorney Alan Runyan entered the suit on Jan. 4, 2013, three weeks before TEC could get its reorganized diocese up and running, before it could install a new bishop to replace Lawrence. Presumably Runyan could have chosen to enter the lawsuit in another state circuit court, more logically in Charleston. From the first, the circuit court judge assigned to this case, Judge Diane Goodstein ruled favorably for DSC, most famously in her early decision to grant a Temporary Restraining Order against TEC and to so so ex parte, that is, without giving TEC a chance to argue against it. (TEC and ECSC later agreed to a Temporary Injunction.) In the next two years, Judge Goodstein ruled time and again in DSC's favor and against TEC and ECSC (consult the "Chronology" post for details). In the three-week trial last July, no one could argue that the proceedings were unfavorable to DSC. I would submit that the whole slant of all the litigation over the last two years has been advantageous to DSC. This is not a value judgment, only an observation on the events. The court's Order seems to me to be the logical outcome of two years of litigation in the local courts.
The decision came after two years of difficult, contentious maneuvering by both sides. Many people in South Carolina, the country, and even overseas have followed every move. Since the decision appeared, I have had over one thousand hits on my blog, no doubt by people hungry for information on this long-awaited and crucial judgment. The purpose of this post is to share with you some of my understanding and opinions about this landmark decision. I am not a lawyer, but I can read the English language and I do have some power of reason (at least I think so).
These are the questions I will address:
1-What did the Final Order say?
2-What were the issues involved?
3-What were Judge Goodstein's main interpretations?
4-What assessments can be made about the Order?
5-What is the future for this Order?
1-WHAT DID THE FINAL ORDER SAY?
It was organized into five parts:
I-"Introduction," p. 2-3, laid out the lawsuit, an action by DSC and its parishes against TEC and ECSC. The plaintiffs, mainly DSC, asked the court for two acts: to declare DSC the party entitled to the rights, titles, insignia, and assets of the diocese, and to make an injunction to prevent the same from TEC and ECSC. In short, it was to make DSC the legitimate diocese.
II-"Procedural History," p. 3-5, provides a summary of the litigation from the time of DSC's entering the suit against TEC on Jan. 4, 2013, to the present.
III-"Findings in Fact," p. 5-23. This was divided into four parts:
A. "Plaintiff Diocese." [DSC] This is longest single section of the Order, with a summary history of DSC from 1785 to present.
B. "Plaintiff Trustees." The role of the DSC corporation trustees.
C. "Plaintiff Churches." The states of the various local parishes that joined the lawsuit.
D. "Defendants REC and TECSC." The legal natures of the two.
IV-"Conclusions of Law," p. 23-44. Set up the standard of Jones v. Wolf and "neutral principles" then subdivided into three parts:
A. "Corporate Control and Rightful Leadership," discussed whether the plaintiffs [DSC] had established legal control.
B. "Real and Personal Property Rights," described the legal ownership of the properties.
C. "Marks," described who owned the names and insignia.
V-"It is Therefore Ordered," p. 44-46. In the conclusion, the judge ordered: that DSC and its parishes are the owners of the properties, that TEC and ECSC have no rights to them, an injunction against TEC and ECSC from using DSC's names and insignia, and dismissal of TEC's and ECSC's counterclaims.
2-WHAT WERE THE ISSUES INVOLVED?
The underlying issue in all of this was the proper interaction between state and church. What was the nature of freedom of religion? What was the nature of the principle of the separation of church and state?
The basic and direct contention between the two sides of the lawsuit was who owned the property of the pre-schism diocese.
In 1979, TEC incorporated into its structure the Dennis Canon: "All real and personal property held by and for the benefit of any Parish, Mission, or Congregation is held in trust for this Church [TEC] and the Diocese thereof." DSC also incorporated this canon into its constitution and canons until 2010. What effect did the Dennis Canon have in SC?
Courts in the U.S. have generally followed two approaches dealing with religious institutions: "deference" and "neutral principles."
Deference means the state defers to the religious institution in governing itself. This approach is supported primarily by the U.S. Supreme Court decision called Serbian Orthodox Church v. Milivojevich (1976). In this ruling, the Court said that the First and Fourteenth Amendments preclude courts from intervening in the internal disputes of churches.
Neutral principles means that courts can settle property disputes between church parties as long as they do not seek to interpret church doctrine or practice. It flows primarily from the U.S. Supreme Court decision entitled Jones v. Wolf (1979). That decision held that a state may adopt neutral principles in church property cases. The South Carolina Supreme Court established this principle in its All Saints/Waccamaw decision of 2009. [Bp Lawrence adopted this immediately and began issuing quit claim deeds to all the parishes, in disregard of the Dennis Canon.]
In general, TEC and its dioceses have sought to have the courts follow the deference principle while the secessionist dioceses have claimed the neutral principles standard.
3-WHAT WERE JUDGE GOODSTEIN'S MAIN INTERPRETATIONS?
She declared immediately for neutral principles and the Jones model.
The judge also declared immediately that DSC was a legal corporation in SC and proceeded as if it were a sovereign entity independent of any other association or corporation.
Moreover, Goodstein declared that freedom of association is a fundamental right, along with freedom to disassociate.
The order declared that DSC legally disassociated from TEC in October of 2012.
It also declared that a diocese can withdraw at will from TEC: "The Constitution and Canons of TEC have no provisions which state that a member diocese cannot voluntarily withdraw its membership." (p. 21)
Too, it stated that TEC has no right to rule over dioceses: "There is no supremacy clause or other provision unambiguously giving any central body or officer of TEC governing authority superior to the diocesan bishop." (p. 22)
The Order also affirmed the idea that the Dennis Canon was inoperable in South Carolina because no explicit trust had been established for TEC.
The judge found all in favor of the plaintiffs, primarily DSC and its parishes, as independent legal corporations protected by SC laws. Thus, she excluded all other entities from the same rights.
4-WHAT ASSESSMENTS CAN BE MADE ABOUT THE ORDER?
The wording of the whole Order follows closely the plaintiff [DSC] lawyers' presentations in their original brief and in the court arguments. The lawyers for the two sides (Thomas Tisdale and Alan Runyan) submitted "Orders," or requests for judgments, to Judge Goodstein on December 10, 2014. These have been withheld from the public. We do not know how closely the judge followed a lawyer's written request. The Final Order is entirely one-sided, without any concession to the defendants. It is completely dismissive of TEC and ECSC's arguments and witnesses. [I have been informed by court clerks that the lawyers' Dec. 10, 2014, requests for judgments made to Judge Goodstein, are not part of the public record and will never be released to the public. Thus, we will never know how closely Goodstein's Final Order followed Runyan's "Order."]
The Final Order contains many astonishing statements, many concerning the structure of TEC. One that jumped out right away was the declaration that TEC is a congregational and not a hierarchical institution. It said TEC is organized from the local level up: "Authority flows from the bottom, the parish churches, up." (p. 22) I know of no other judicial ruling in the U.S. that says this explicitly. Moreover, the dioceses are autonomous entities. Too, the local parishes are free to leave the diocese at will. (p. 17). No federal court has ever ruled that TEC is not a hierarchical institution. Indeed, some 100 cases in the last decade have confirmed this. [Judge Houck, U.S. District Court in Charleston, in August 2013, ruled TEC to be hierarchical.]
The Order also said that DSC legally withdrew from TEC. (p. 26). Whether DSC disassociated from TEC is a highly contentious issue. Although the judge approached this entirely from the perspective of the corporation's unilateral legal right, it seems to me this statement may be beyond the limit of neutral principles because it could be construed as interpreting the internal working of a religious institution.
The Order also declares two of the anti-Episcopal Church side's main talking points: 1-that the Constitution and Canons of TEC have nothing to prevent a diocese from seceding and 2-have no "supremacy clause" giving a national authority of TEC power over the local dioceses. In the first place, the U.S. Constitution also has no provision preventing states from seceding from the Union. It does not need it any more than TEC needs it because it is strongly implied in the very nature of the constitution. To join a greater union, one part must surrender at least a portion of its independence and sovereignty. It is impossible to have sovereignty spread out equally among the individual parts. The charge that TEC has no clause preventing secession is not a strong one. On the other hand, the U.S. Constitution does have a "supremacy clause" giving authority of the acts of Congress over the states while the TEC C and C lack such a provision. However, once again, it can be argued that supremacy of a higher organization is implied in the very nature of the constitution. No national organization could function on any meaningful level without agreement among the members to act together. An association without a central authority would be only an amorphous band of friends with little or no common purpose.
Perhaps the most startling statement in the entire Order was: "Mark Lawrence was not elected Bishop of the Diocese with the intent on either his part or on that of the Diocese to lead the Diocese out of TEC. From 2009 until October 2012, his intent was to remain 'intact and in TEC.'" The Order gave no supporting evidence for this statement. All we really know is that Lawrence said under oath he had no intention of leaving TEC. That is it. My study of the events of Lawrence's episcopate reveal a different picture, one of the diocesan leadership's willful and gradual removal of DSC from TEC. Whether Lawrence "intended" it or not, he led DSC out of TEC and did so voluntarily. He and the Standing Committee left TEC; it did not leave them. It is this part of the Final Order with which I as a historian take the greatest issue.
In another place (p. 8 #16), the Order implied that Lawrence became bishop upon the diocese's authority. Lawrence became a bishop only after a majority of the standing committees of the whole Episcopal Church consented and he had been consecrated by the authorities of TEC. Moreover, he made a solemn vow to obey the Episcopal Church. The Order left out all this. Lawrence did not become a bishop because of the legal corporate right of DSC; he became a bishop only because of the authority of TEC.
From my perspective, the most troublesome part of the Order was the longest part, the historical presentation on pages 5-15. It picked out supporting facts, left out many others, and made debatable assumptions. For instance, on p. 14, it said "Lawrence was not served with the certification." This was referring to the Disciplinary Board for Bishops certification in 2012 that he had abandoned TEC. Lawrence said under oath he was not served with the certification. The point was that the resulting "restriction" and later removal imposed by the Presiding Bishop were illegal. In other words, Lawrence meant that he had never been legally restricted or removed. Apparently it was true Lawrence never received a hand-signed copy of the order in the mail. It is an undisputed fact, however, that he got the news by phone and by e-mail from the Presiding Bishop on Oct. 15, 2012. It is not true to say that Lawrence did not know about the charge of abandonment. He knew very well on Oct. 15, 2012, that he had been charged and had been placed under restriction. [I heard him say this to an assembly a few days later.] He immediately rejected and ignored both of them then called the Presiding Bishop on Oct. 17, 2012 to tell her this. To say that Lawrence was "not served with the certification" is Clintonian parsing.
Another jolting statement in the Order was that local parish churches had never been members of TEC. (p. 17) Sorry, but I have no response to any such Alice-in-Wonderland notion that Episcopal churches were never Episcopal churches.
There is also an inconsistency between the idea that the diocese had always been independent and actual events. At the very least, DSC's corporate charter from 1973 to 2010 stated very clearly the diocese was subject to TEC. Too, DSC publicly adhered to the Dennis Canon until 2010. In addition, DSC held, until 2010, as the first item in its own constitution and canons, allegiance to the constitution and canons of TEC. A case can be made that DSC functioned at some time under the sovereignty and authority of the national Church. In my view, the idea that DSC was always sovereign and independent is unsupportable in the well-known historical record.
It seems to me a case could be made on appeal that the Order goes too far beyond the limits of neutral principles. A great deal of the content and rationale of the Order deals with the institutional relationship of TEC and DSC. That could well be argued as intervening in the internal structure of the Episcopal Church, something that is forbidden in the Serbian Orthodox Supreme Court decision. In my understanding, the neutral principles standard strictly limits a court to action only on property issues. Therefore, in my opinion, a strong and convincing case can be made that Judge Goodstein's Final Order improperly surpasses the bounds of neutral principles and violates the First Amendment of the U.S. Constitution (the principle of the separation of church and state). Therefore, it should be ruled unconstitutional and overturned by a higher court.
5-WHAT IS THE FUTURE FOR THIS ORDER?
My prediction is that it will be upheld by the SC Court of Appeals and the SC Supreme Court. The state supreme court will probably be eager to defend its 2009 All Saints decision. Although it applied only to one parish, I expect the court will expand its view of the invalidity of the Dennis Canon in the whole diocese. Since Judge Goodstein followed closely the state supreme court rulings, I imagine that court will validate her decision.
[It is interesting to note that the All Saints decision is the only one in the whole country where a local parish won control of the property as a final order. DSC had fought All Saints in court for years before Lawrence became bishop. Upon the decision (Sept. 2009), Lawrence immediately reversed DSC's longstanding policy on Dennis. In direct contradiction of Dennis, he divested DSC of any claim to local properties. He issued quit claim deeds to the parishes. Meanwhile, St. Andrew's of Mt. Pleasant walked out of DSC with property in hand as Lawrence looked on. Before that Lawrence had supported St. Andrew's removal of millions of dollars worth of property into an ironclad trust beyond DSC's and TEC's reach.]
There is another avenue of litigation going on at present. It is the federal court case of vonRosenberg v. Lawrence. Just last week the Fourth Circuit Court of Appeals in Richmond held a hearing on ECSC's appeal of the U.S. District Court's decision to abstain in view of the current state court action. That case is likely to be remanded to the District Court in Charleston with direction to follow the Colorado River standard. That would require the court to continue the case or find an extremely narrow reason not to do so. This would be to the advantage of ECSC. It is too soon to tell now what impact Goodstein's Order will have on this case. An interesting point about this case is that Judge Houck's order of August 2013, while abstaining, also said that TEC is an hierarchical institution and that Lawrence had renounced his ordained ministry. Goodstein's Order puts herself at direct odds with Judge Houck's earlier judgment.
If the SC Supreme Court finally rules in favor of DSC, as I would expect, it is probable that TEC will offer the case to the U.S. Supreme Court. TEC appealed to the Court last summer in the Ft. Worth case but the Court refused to take it. That may have been because the Texas case was still in process. It had not been finally judged by the state supreme court. SCOTUS is known to be reluctant to take cases that have not been settled in the lower courts. So far, not one of the five secessionist diocesan cases (San Joaquin, Pittsburgh, Ft. Worth, Quincy, SC) has received a final ruling from a state supreme court. If SC is the first, I imagine TEC will appeal it to SCOTUS.
It seems to me it is going to take a U.S. Supreme Court decision to bring an end to all this destructive, endless litigation. I think that down the road it will happen and the Court will defend the right of a national religious institution to govern itself. Separation of church and state is a bedrock principle on which this country was founded. Under this most precious of freedoms, the Episcopal Church has the right to govern itself without the interference of any state institution. We citizens have the right, indeed the duty, to defend the freedoms on which this county was founded and has flourished.
