THOUGHTS ON

THE SOUTH CAROLINA

SUPREME COURT HEARING

INTRODUCTION

Immediately after the hearing on September 28, I made a posting on this blog giving my initial reaction to the event. In the days since, I have reheard the recorded proceeding and made a written transcript for study. After several days of reflection, I can confirm my initial reaction. Now, I have some additional thoughts to offer my readers. Bear in mind I am an ordinary layman, neither a lawyer nor an expert on legal history. I have no connection to either party in this dispute. These are my own thoughts as a student of the history of the schism, for whatever they are worth, which may be nothing. Yet, I can only assume readers are interested. I have had over 3,000 hits on my blog since the hearing.

The hearing started at 10:55 a.m., on Wednesday, September 23, 2015, in the Courtroom of the South Carolina Supreme Court building in Columbia. It lasted 56 minutes and 38 seconds. Two lawyers made presentations to the court, Blake Hewitt for the appellants, the Church side (TEC/ECSC), and Alan Runyan for the respondents, the independent diocesan side (DSC). All five justices were present and all spoke. Chief Justice Jean Toal presided. The other justices were Costa Pelicones, Donald Beatty, John Kittredge, and Kaye Hearn. In all, 7 persons spoke in the hearing. The first block of time went to Hewitt, the second to Runyan, and a rebuttal time to Hewitt. The Chief Justice allowed the attorneys all the time they desired to use. Although both lawyers prepared formal "presentations" for the court, neither got far before the justices broke in for numerous questions. The time was about evenly divided between the justices' questions and comments and the lawyers' responses.

The arguments the two lawyers presented were exactly as I had expected. Right off, Hewitt raised the issue of the loyalty of the diocese to the national Church stressing the bond between diocese and Church under the Constitution and Canons of TEC. The diocese, and authorities in it, he said, had power only under the governance of the Episcopal Church. He also said this was a religious and not just a property dispute. He talked much about the importance of the Dennis Canon and the problem of the quit claim deeds. On the other side, Runyan stressed the sovereignty of the diocese as an independent entity unto itself, not dependent on the national Church, and insisted two separate parties were at dispute here. As a corporate body under state law, the diocese could act as it pleased towards the Episcopal Church. He stressed also this was only a property dispute that must be settled only under local property laws. He said the issue of whether the Episcopal Church is hierarchical was irrelevant in this instance just as it was in the All Saints case of 2009.

WHAT DO WE KNOW FOR SURE NOW?

As a result of the hearing, several points stand out as certainties that we can take away from the event:

1. Judge Diane Goodstein's decision in the circuit court trial has been discarded. DSC had asked the court to uphold the decision; TEC/ECSC had asked the court to overturn it. Score: win for TEC/ECSC.

The demolition came from Toal with a lot of help from Hearn. Only a few minutes into Hewitt's presentation, Toal jumped in to denounce Goodstein's opinion: "It may have been very unbalanced to have made the rulings that were made below that allowed one side's experts...to testify very fulsomely and forbade your side's two experts from getting at all in the issue...hierarchical versus congregational." This was the first of the 40 interjections the Chief Justice made (Hearn had the next highest at 34). This was only Toal's first arrow into Goodstein, but it alone conveyed the unmistakable doom of death. To Runyan, she said, "This case was tried in a rather one-sided way on that particular issue [hierarchy]. You all were allowed to put in an expert to discuss in detail his opinions about whether hierarchical matters...Now, the other side had Dr. Walter Edgar and Professor McWilliams for two that were prepared to delve into specifically matters of hierarchy and so forth and they were completely stopped from arguing that, from presenting evidence about that and then the judge said we are not going to make a finding about hierarchical and then the order comes out and finds that this church is a congregational church. How did all that happen with the way this case was tried? Toal's body language conveyed agitation, but she was not finished. After a rather stunned Runyan got out a response about the Church having no right to control the diocese, Toal exploded: "They [TEC/ECSC] were not permitted to put in any evidence on that point. That's the reason I'm asking the question. And then, and then the judge said I'm not getting into that, she termed it, we are not a hierarchical state as a kind of odd thing because we discussed both principles in All Saints but she said, this, none of this information is going to be considered by me because we are neutral principles. How in the world if that is the framework that was used was a finding made specifically that this is a congregational, that the Episcopal Church is a congregational church?" Runyan, reeling, mumbled, "Your Honor, I know it surely does read that way..." Toal shot back: "It's exactly what it says!" But she was still not through with Goodstein. A few seconds later, she launched into Runyan again: "I mean there's a different side to that and a different set of arguments...in terms of your now getting into this hierarchical/congregational dispute and trying to use the perceived status of the Episcopal Church as a congregational church when your own expert explicated in detail the apostolic succession of your bishops beginning with the apostles and yet this judge finds that it's a congregational church, I'm struggling with that as a means of justifying this Order." There was no justifying the Order. At that point Goodstein's Order of Feb. 3 expired. Everyone knew it. The dominant voice had spoken. Not one other justice spoke up to defend Goodstein's decision.

2. The court dismissed the relevance of its own 2009 All Saints decision to the present case.

It was not just Goodstein's decision that riled up the Chief Justice. Runyan's use of the 2009 All Saints decision did too, perhaps even more so. Since she was the author of that very decision, Toal had a unique protective attachment, perspective, and understanding of the case (Judges are famously protective of their own decisions). Runyan made All Saints a major part of his presentation calling on the court to apply the same principles to the present case.

A bristling Toal would have none of it. The author of the decision broke in to deliver the longest speech of the entire hearing. She dismissed Runyan's claim of relevance and gave a long discourse on the differences between the two cases. (This was my biggest surprise of the day) Patience wearing thin, she lectured the lawyer: "Remember, recall, Mr. Runyan, that in All Saints there wasn't any dispute about the bishop's control of at least some personal interest in All Saints's property...No question about the bishop's authority. Serbian church, no question about the bishop's authority. Here, BIG question about the bishop's authority...but also big questions about whether the diocese, whether the bishop, has any ownership interest at all to deal with because of the Dennis Canon, so big difference between the case and All Saints where they wasn't any question about the bishop's ability to quit claim, would you agree?" End of matter. The very author of the All Saints decision snatched the rug from under Runyan's feet. In my view, Toal's decisive demolition of the Goodstein Order and dismissal of the relevance of the All Saints decision were her two primary contributions to the hearing. Both were stunning victories for the TEC/ECSC side and humiliating setbacks for the opposition.

3. Justice Hearn was completely committed to the TEC/ECSC side.

She was their intrepid advocate, doing, in my opinion, a better job of it that the lawyer. Hearn was the second most vocal justice, interjecting 37 times. This steel magnolia gave no quarter and pulled no punches, of course always with the consciously genteel and polite good manners so common in the Low Country. Hearn was the second justice to speak, denouncing Goodstein's decision and declaring the Episcopal Church hierarchical. She asserted that neutral principles and hierarchy are not mutually exclusive, that the Dennis Canon created a trust, and that DSC had its own Dennis Canon before the national church. She also pointed out, perhaps daringly to the face of the author, that the All Saints decision was an "outlier" because not one other state in the union had accepted it. Although she gave Hewitt plenty of help, she saved her energy for Runyan. The tension in the string of exchanges between Hearn and Runyan was palpable. And this came after Runyan had just suffered through Toal's withering barrage on All Saints. Runyan and Hearn started interrupting each other through nine exchanges until Hearn finally commanded: "Stop there just a minute" to assert the Dennis Canon would trump any state law. Of course, Hearn could not resist adding to Toal's demolition of Goodstein. At one point she confronted Runyan: "This was a non-jury trial and yet I counted over twenty-five objections to Professor McWilliams's testimony in a non-jury trial. You all tried to hard to keep any of that evidence out, and then the Order is issued and low and behold there is a finding that this church is a, controlled by the bottom, that the parishes are really in charge rather than the national church."

4. Chief Justice Toal was the dominant person in the room. There could be no doubt. This was her court. This was her case. It should be remembered that she took this case on appeal to bypass the appeals court. She dominated the conversation in the hearing literally and figuratively. I can only assume all this assertiveness means she will write the court's decision, if she is in the majority, that is.

5. All five justices were outwardly supportive of each other. I detected not a hint of tension among them during the hearing. This could point toward a unanimous decision.

6. Runyan encountered a good deal of overt hostility, especially from Toal and Hearn.

WHAT QUESTIONS REMAIN UNANSWERED?

 

1. The fundamental question in the whole case is, What approach will the Court use in resolving this case? If we can assume the Court has discarded Goodstein's Order and will write a new decision, what criteria will the Court use to make their ruling? We can only guess at the answer by looking at various words of the justices in the hearing.


As a word of warning, we should not jump to the conclusion that discarding Goodstein's Order and All Saints also discards their conclusions. It could be that the court will reach the same conclusion for DSC by other means. I think there was a good possibility in the hearing that Toal was trying to do that by often redirecting the discussion back to the property rights of a state chartered non-profit corporation. 

Although the Chief Justice insisted that the 2009 All Saints decision was not relevant to the present case, she and the other present signatory, Justice Beatty, may possibly want to continue their earlier attitude of favoring the local entity. There were parts in the hearing that might have indicated that. At one point, Toal said to Hewitt in reference to the hierarchical issue: "In the final analysis, specifically with reference to the property determination, the title determination, what difference does it make?" Property rights became Toal's common theme. Then, after chastising Runyan on Goodstein's Order and on All Saints, she propped up the reeling lawyer by feeding him his position: "All these organizations started to file articles of incorporation with the secretary of state including this diocese and there is nothing in those articles that are filed that forbids the corporation that we are talking about, which is your client, from disassociating or deaccessioning from the national church their corporation, they legally changed their purpose. They withdrew their accession to the national church and as a corporation they had the authority to do that, that's your argument, isn't it?" She then added: "If we see it as a matter of corporation law, and don't get tangled up in all the doctrinal issues, as a matter of corporate law they legitimately filed papers accomplishing that, that's your argument?" At the end, during Hewitt's rebuttal, Toal threw him some confrontational hardballs such as: "There is nothing in the corporation law of this state that forbids a corporation, if it does it correctly and according to the law, from changing its purpose, is there?" She continued, "You want us to declare that the corporate law of South Carolina is that once you put a purpose clause in your charitable corporation you are forever bound to that purpose clause and, it can never be changed even if your constitution and operational documents are properly amended to do so?" Then, Toal challenged Hewitt: "What corporate, what constitutional documents were violated by amending the purpose to withdraw their accession from the national church?" The lawyer answered, the Constitution and Canons of the Episcopal Church. Toal retorted, "And are you saying that the national church, once you join it, you can never unjoin it, unless the national church lets you unjoin it? Alright, what principle governs that, the Dennis Canon?" Hewitt answered, the General Convention.

If the focus in deliberations is on narrow corporate rights over the local property, the DSC will have the edge. In order for TEC/ECSC to win, the focus must move to the obligation of the diocese to the national church. Toal seemed to want to make the issue a local corporate authority one. If she does, she can expect a strong opposition from Hearn. If that happens, I can envision an irreparable split on the court. I would guess Toal and Beatty would be on one side while Hearn, Pleicones and Kittredge would be on the other. That would give a 3-2 majority decision for the Church side.

2. What effect will the issue of Bishop Lawrence's authority have on deliberations? Another surprise I had was to hear the discussion about whether Bishop Lawrence had the authority to do what he did. Hearn had no hesitation about rejecting Lawrence's authority and recognizing vonRosenberg as the legitimate bishop of the diocese. Toal, however, seemed only perplexed by the question and gave no answers.

3. What effect will the issue of trademark infringement have on deliberations? Toal seemed annoyed by Judge Houck's decision to defer to the state supreme court and wondered aloud whether they could consider the issue. Kittredge offered that they could. If trademarks are added to the mix, that should strengthen the Church's hand since federal trumps state.

4. What effect will past political maneuverings among the justices have on their deliberations in this case?

On Feb. 5, 2014, the South Carolina General Assembly elected Toal to another term as chief justice (in South Carolina, judges are justices are elected by the legislature). She defeated Pleicones by a vote of 95 to 74 after a reportedly controversial campaign. She stood for reelection even though she would have only a year to serve on the 10 year term since state law requires a chief justice to retire at the end of the year in which he or she turns 72. In May of this year, the Assembly elected Pleicones chief justice without opposition. After Toal retires on Dec. 31, 2015, he will become chief justice but will have just one year to serve as he will have to retire on Dec. 31, 2016. Although both publicly profess to being nothing but good friends, one has to wonder what lingering feelings Pleicones might have about Toal's blocking his election in 2014 leaving him with only one year as chief justice. Toal has been chief justice since 2000, more than any chief justice in modern history.

5. What effect will Toal's view of her historic legacy have on the impending decision?

Toal will have been chief justice for 15 years, the first woman and the first Roman Catholic to hold that position. She must be concerned about her legacy. How will future generations view her place in history? As the author of the landmark 2009 decision on the All Saints' property, she would certainly want to protect that. She knows how poorly that decision has been received in the nation. In fact, no other state has accepted it. This must be something of an embarrassment for her.

The present case will perhaps be her final legacy. She will want to get it right. I would guess she would want a unanimous decision clearly giving a standard the whole nation would accept. After all, this will be the first state supreme court in the United States to rule on a dispute between the Episcopal Church and a local diocese. This decision may well be her greatest legacy. (It strikes me as ironic that of all states, South Carolina may be the one to decide the national standard on whether a diocese can secede from the union.) 

I am certain a decision favoring DSC will not be unanimous. It is inconceivable Hearn would go along. On the other hand, a decision for TEC/ECSC would either probably be unanimous or a 3-2 split with Toal in defeat. Would she want defeat to be her final legacy?

6. Is there an ideological split on he court that would affect the outcome of deliberations? On this I would have to defer to someone who is familiar with the historic inner workings of this particular panel of justices. I saw no apparent split in the hearing, but that does not mean it does not exist. One would need to study the decisions handed down by this particular panel of justices to know that.

SOME FINAL THOUGHTS

The reactions of the two sides after the hearing tell us much about how the hearing went. The DSC issued a press release that was factual and straightforward without their usual spin. Typically, if DSC is pleased it declares victory as God's will. This time they did not. The quasi-official voice of DSC, Kendall Harmon's website, has been almost silent on the subject, only posting what others said and with almost no comment. Very vocal, as usual, was Alan Haley, the lawyer and blogger a.k.a. "The Anglican Curmudgeon." This time he turned all guns on Justice Hearn for her "blatant bias" and "unprofessional" behavior. He called for her to be investigated under the ethics codes. Ladson Mills III echoed that on Virtueonline claiming she had too many ties to the Episcopal Church. Thus, the reactions of the DSC side tell us they sense they are in trouble in the state supreme court. If they were confident of victory they would be behaving otherwise, and certainly not vilifying one of the justices who is about to rule on their case.

On the other side, the reactions are a mixture of relief and jubilation. You have only to read Steve Skardon's blog, scepiscopalians to know that.

Will this decision be appealed to the U.S. Supreme Court? Maybe. The loser certainly will have the right to ask SCOTUS to take the case. I expect TEC would do that if they lose. DSC has indicated they may not appeal if they lose.

If DSC winds up losing this case, I think it will be because their lawyers made certain serious errors. The first was to get a circuit court trial relentlessly one-sided with a decision that was so over the top it was dead on arrival at the higher court. A more balanced trial, a more judicious decision that still reached the same conclusion would have had a much better chance of success. There is such a thing as too much of a good thing. The excess of the circuit court turned out to be its own self-destruction. A second mistake the DSC lawyers made was to try to spread the 2009 decision on All Saints parish to the whole diocese. They overplayed their hand and the author of that very decision slapped them down for it. A third mistake I see was not to challenge Justice Hearn to recuse herself. I know of no evidence they did that. Complaining after the fact does no good. Perhaps the decision not to challenge Hearn was made by the same DSC lawyer who thought it was a good idea, in early 2013, to subpoena the spouse of a state supreme court justice. How to account for these misjudgments?Overconfidence? 

Before the hearing, I ended my last posting on this blog with a sorrowful lament on the lowest point in the long and great history of a premier diocese of the Episcopal Church. I still believe that. However, it is always darkest before the dawn, and I have a feeling, and it may just be wishful thinking I know, but I have a feeling that a tiny glimmer of dawn may be breaking way off on the horizon. A long, dark and terrible night might just possibly be coming to an end. One side will win and one side will lose. Even in losing, that side will be a step closer to fulfilling its mission. If TEC loses, it can appeal to SCOTUS for a definitive decision for the nation. Upon defeat, DSC leaders can reorganize and move forward on their self-proclaimed mission of making biblical Anglicans for the twenty-first century until that inevitably runs its course, homophobia fades away and the prodigal sons and daughters return to the loving arms of their ancestral home. So, I think whatever happens in the state supreme court will be for the greater good of both sides. It is just that none of this should ever have happened. It did not have to happen. It is a scandal and a shame, but I know all will be well somewhere down the road.                  

TOAL AND HEARN

DEMOLISH GOODSTEIN

Preliminary report on the South Carolina Supreme Court hearing of Sept. 23, 2015. The following is my initial observation of the hearing. I will have a lengthier report later.

Goodstein's Order is dead.

Chief Justice Jean Toal and Justice Kaye Hearn destroyed it by simply pointing out its fatal flaws even without having to drag it out of the lawyers. Toal spoke the most, asking 24 pointed questions. Right off, she slammed Goodstein's decision: "unbalanced," "forbade" one side to give testimony, supposedly followed neutral principles then found the Episcopal Church to be congregational, "How did this happen?" "how was the finding made that this is a congregational church?" Toal also said "it disturbs me" that the circuit court trial went in "one sided way," "they [TEC/ECSC] were completely stopped [in giving testimony]." While returning time and again to denounce the circuit court, Toal also weighed in on the All Saints/Waccamaw decision (which she herself wrote in 2009, giving property to local parish). She declared "There is a big difference between this and All Saints." Toal went on to talk at length about the 2009 decision pointing out the differences between it and the matter at hand. She refused to apply the earlier decision to this case. The chief justice also wondered how Mark Lawrence had the authority to do what he did. She said, how could he give the quit claim deeds after he had made an oath of loyalty to the Episcopal Church? "I have a big question about the bishop's authority," she declared. When the topic of federal judge Houck came up, she seemed a bit annoyed by his passing the buck to the state court yesterday. She mused aloud about whether they had the authority to rule on the Lanham Act. Personally, I was most impressed by Chief Justice Toal. She was well informed, sharp, inquisitive, and knew how to go straight for the important issues at hand. I could not help but think of the contrast to Judge Goodstein. 

Justice Hearn also played a large role in the hearing, asking twenty-six questions overwhelmingly favorable to the Church side and critical of the independent diocese. In my opinion, she made the case for the Church side better than the lawyer (Mr. Blake Hewitt) did. She declared right off: "This [TEC] is a hierarchical church." The All Saints decision she swept aside (in front of the author) as "an outlier" as she pointed out that not one other state in the nation had accepted it. She too eviscerated Goodstein's decision, for instance, telling Runyan to his face that he raised twenty-five objections during the testimony of Church witness McWilliams: "You tried so hard to keep all the evidence out." Some other points Hearn drove home: DSC had its own Dennis Canon years before TEC adopted the Canon; the Dennis Canon trumps state law; DSC cannot take property away from the national Church; DSC incorporated in 1974 "under" the Constitution and Canons of the Episcopal Church; TEC recognizes Charles vonRosenberg as the rightful bishop, so why should not we? Runyan seemed flustered by Hearn's sharp questions and comments and only mumbled his stock answers in reply. It was very clear to him and everyone else that this was not Judge Goodstein's courtroom in St. George, far from it. He was no longer in control. He certainly was not in control of justices Toal and Hearn.

Justice Kittredge also asked numerous questions. He too seemed incredulous at the idea the Episcopal Church could be "congregational." He said if TEC were hierarchical, how could DSC act as it did? How indeed. On the Lanham Act and trademark infringement, he seemed to have no hesitation about ruling on that. At one point he asked Mr. Hewitt: what does TEC/ECSC want from this court? The lawyer said: recognition that ECSC is the true diocese, recognition that the property belongs to TEC and ECSC, and the "marks" of the diocese. Kitteredge seemed to take it all in. Justice Beatty asked only one question. Justice Pleicones asked a few, the most important of which declared that the Dennis Canon was in the governance of the Episcopal Church.

Thus, it seemed to me Chief Justice Toal had great problems with the Goodstein decision, both in what it said and the way it reached what it said. Barring evidence and witnesses from one side and not the other, which Toal declared Goodstein had done time and again, is a prime reason for a higher court to throw out a lower decision. My feeling was that Toal was leading in that direction. Judge Hearn had great problems with the entire case of DSC. Obviously she had already thrown out Goodstein's Order in her own mind. On the other hand, I heard very little of support for the DSC side. Not one justice defended Goodstein's ruling. A lackluster Runyan did an unconvincing job.

My initial reaction is that the hearing was a big victory of the Episcopal Church and the Episcopal Church in South Carolina. Of course, one must not jump to conclusions. The justices could still decide to uphold Goodstein for various reasons not obvious to us today. At any rate, I think the Church side should feel very well about today and the independent side should be worried.  

FEDERAL COURT ACTS

Judge C. Weston Houck, of the U.S. District Court, in Charleston, issued a ruling yesterday entitled "Order" (www.diosc.com/sys/images/documents/tec/fed_court_grants_lawrence_motion_9_21_15.pdf ). In it he granted Mark Lawrence's motion to stay the proceeding in the federal court until the resolution of the appeal pending in the South Carolina Supreme Court. This means the case in the U.S. District Court will be suspended until the state supreme court issues its ruling. If the state supreme court follows its typical six-month lapse between hearing and written decree, one can expect a judgment in March of 2016. However, the state court can issue a decision whenever it chooses.

In the federal case, Bishop vonRosenberg sued Bishop Lawrence charging infringement of the Lanham Act that covers trademark rights. In short, vonR was asking the federal court to recognize him as the legal bishop of the Episcopal Diocese of South Carolina. Earlier this year, the U.S. Appeals Court had ordered Houck to reconsider the case following the Colorado Principle that requires a federal court to adjudicate a case involving federal law with very few exceptions. In yesterday's Order, Houck ruled that the Colorado Principle allowed him to abstain in this case because the previous action in state court was parallel: "the underlying issues in the state court action is the Diocese's identity, ownership, and control. This same issue is at the heart of Bishop vonRosenberg's claims in the federal court action."(p. 20) He determined that this case met the "exceptional circumstances" allowed under the Colorado Principle.

It is important to note that Houck placed a stay on the case; he did not dismiss the case. In the end he said: "If the South Carolina Supreme Court holds that the Diocese legally withdrew from TEC, then Bishop vonRosenberg will have no grounds to claim that he, not Bishop Lawrence, is the rightful Bishop of the Diocese and possessor of its marks." (p. 21) He went on, "On the other hand, if the South Carolina Supreme Court determines that the Diocese did not validly withdraw from TEC, then Bishop vonRosenberg may claim that Bishop Lawrence is unlawfully holding himself out as the true Bishop and infringing on the Diocese's marks." (p. 21) In other words, Houck will defer to the state supreme court to decide the issues in the overall dispute between the independent diocese and the Episcopal Church and its diocese.

The Rev. Jim Lewis has just issued a press release not surprisingly touting Houck's ruling. Unfortunately he continued his earlier assertion of God's favor on DSC and even called the other side the "enemy": "Pray for the protection of all involved in this case from the assault of the enemy." Yesterday I made a posting on this blog about the present situation being the lowest point in the 230 year history of the Episcopal Diocese of South Carolina. One side demonizing the other as the "enemy" is just further evidence of my claim. I stand by my view that this is the worst moment in the long history of a once great diocese.  

 

SOME FINAL THOUGHTS BEFORE THE STATE SUPREME COURT HEARING

The stage is set for the South Carolina Supreme Court to conduct its hearing of the appeal of Judge Goodstein's decision, on Wednesday at 10:30 a.m. Anyone with access to a computer can watch it live streamed ( http://scetv.org/events/supreme-court ). Here are some suggestions I, a non-lawyer, offer for viewing the hearing:

1. The 5 justices are the most important people in the room. They, and they alone, will decide this case. Watch each one for "body language" as well as questions. They are likely to spend most of the time asking questions of the presenting lawyers. Who will ask the most, the least? Will they ask more of the appellants (TEC/ECSC) or the respondents (DSC)? How will they interact with the lawyers, inquisitive, supportive, combative, or indifferent? Will they try to bring out more information from the lawyers or argue against their assertions? Is it possible to tell if each justice is more partial to one side or the other?

2. Topics. Look for certain key topics in this case, how they are raised, presented, argued, and questioned by the justices:

---Goodstein's decision (Final Order of Feb. 3, 2015). TEC/ECSC is appealing this decision and asking the court to discard it and act de novo, or anew. If the justices give much attention to the decision it might indicate favoritism or leaning toward revision. If they speak little or not at all of it, that might indicate they will toss it out. The lawyers and justices are bound to speak of the decision some because after all this is an appeal of that decision, but amount, content, tone, and attitude of the talk may indicate position regarding the decision.

---The All Saints/Waccamaw case (the 2009 SC Supreme Court decision written by Chief Justice Toal recognizing the local parish as owner of the property and not the diocese). Pay close attention to how Toal and Beatty, the only other justice present who signed the decision, handle the All Saints references. A great deal of positive discussion might indicate slant toward DSC. Little reference, or critical remarks might indicate slant toward TEC/ECSC.

---Neutral principles. South Carolina courts follow neutral principles, as in the All Saints decision and Goodstein's Final Order. However, TEC/ECSC will argue that either Goodstein's Order went too far beyond neutrality and/or that neutrality is not appropriate in this case since it involves internal matters of a religious institution. Pay close attention to the justices questions and discussion concerning neutral principles. If they agree with TEC/ECSC, the courts apparently would have to go to the "deference" principle. That would leave TEC alone to settle its own affairs. This would be a defeat for DSC as they must maintain neutral principles.

---Hierarchical. Is the Episcopal Church hierarchical? A yes answer would lean to TEC/ECSC while a no would favor DSC. Listen for the number of times this term arises and the context in which it appears. Judge Goodstein ruled TEC is absolutely not hierarchical.

---The U.S. District Court case. Judge Houck, in Charleston, is handling the federal case in which the Church side is charging trademark infringement and asking the court to recognize Bishop vonRosenberg as the legal bishop of the Episcopal diocese and not Lawrence. The federal case may not be mentioned at all, but if it is, it will be interesting to see how the lawyers and justices handle it. Houck has said the proceeding in the state supreme court would have no influence on his case.

As I said, most of all observe the five justices because they are the only ones who really matter here. Watch them as they interact with the lawyers and with each other.

A SOMBER MOMENT

I think we should stop now and consider the gravity of this moment. The grand old Diocese of South Carolina has reached a new low point. It has split in two. Episcopalians have turned against fellow Episcopalians. Lawsuits abound. The two sides are behaving in a way St. Paul said was shameful. They are now about to appear before the highest civil tribunal in the state denouncing and counter-denouncing each other and pleading with the court to favor their side and reject the other. As a student of history, I must say this is the worst moment in the 230 year history of the grand old Protestant Episcopal Church in the Diocese of South Carolina, once the premier religion of a primal colony and state. This is a time that calls for a moment of somber and quiet reflection on this sorry state of affairs.

There have been numerous low points in the long history of this diocese. South Carolina was one of the first nine states (dioceses) that founded the Episcopal Church in the 1780's. One of the nine little crosses in the blue field of the Church flag is for South Carolina. However, it was a struggle to rebuild after the damage and loss in the Revolutionary War. Too, the Civil War caused all the southern dioceses to have to form a separate church which they did and then disbanded after the War. The lowest point before now was the infamous "Schism of 1887" in which the large parishes of Charleston staged a walk-out from the convention because one black person was present. The bishop gave in and agreed to a whites-only convention. Blacks were reduced to humiliating second-class citizenship. The diocese gained the well-earned reputation as the most racist diocese of the entire Episcopal Church. After 1947, it was the only diocese that had not integrated its convention. Even then white racists blocked that for seven more years until finally agreeing to admit historically black congregations. It was only in 1965 that all parts of the diocese were integrated, thus bringing an end to the Schism of 1887 nearly 80 years later.

The state of affairs today may be lower than the shameful racist post-Civil War period, but it is borne of the same underlying causes, prejudice against a minority. Discrimination against blacks turned into discrimination against homosexuals (and let's drop that nonsense that the schism of 2012 had nothing to do with gays). Both kinds of discrimination are wrong. Both are anti-Christian. I am weary of hearing all about how the Bible condemns homosexuality. Before the Civil War, countless preachers across the south quoted even more passages defending slavery. Discrimination is just wrong, whatever form it takes; and hiding behind out-of-context Bible quotes will not change that.

Well, one might ask, how did South Carolina get into this big mess? The short answer is that after 200 years in the Episcopal Church, the majority of the diocese lost faith in the Church of their ancestors. Why did they lose faith? Because the diocesan leaders told them they should not condone the "indiscriminate inclusivity" of the Church (equal rights for gays). Instead, they should discriminate against homosexuals and transgendered persons. The majority of communicants agreed. It was as if everything old was new again. Eventually the secretive ruling clique, of perhaps two dozen people, organized a schism. Church lawyers have argued in court this was a conspiracy against the Episcopal Church. Having studied the historical evidence, I tend to agree. There was a premeditated plan to remove the diocese from the Church. We just do not know yet how far back that planning went.

Whoever "wins" in court will not really be winning. Everyone in this situation loses. If DSC sees Goodstein's Order prevail, where will it be? Three years on, it is in nowhere going nowhere. It is not part of any Anglican province. It has just set up an "Institute" to train "leaders." Leaders for what? Where will they lead anyone? Refusing to join any larger group, DSC has no future. Besides, in time, discrimination against gays will pass leaving DSC another shriveled and diminished relic in the museum cabinet of South Carolina history. If TEC/ECSC wins, they will gain empty or nearly empty buildings. With perhaps half of the old diocese, it will struggle just to maintain the properties. Hard feelings are bound to last a long time.

However, I refuse to end in despair. If history leaves us sober and sad today, it does not leave us hopeless. I take my inspiration from the African Americans and their incredible example of survival, against 200 years of slavery, then another 100 under virulent racism. Through it all, they never lost their dignity, their humanity, and their profound faith in a better tomorrow. They refused to despair. We should too. One day, perhaps sooner than we imagined, the wrongful bigotry against homosexuals will pass away. Then, I predict the good people of South Carolina will look back in shame and sorrow at the self-destructive Schism of 2012, the darkest moment in the history of the great old diocese of South Carolina.  

STATE SUPREME COURT HEARING

TO BE LIVE STREAMED

The South Carolina Supreme Court will live stream video of the Church hearing on Wednesday, September 23. The address is:   http://scetv.org/events/supreme-court .  The recorded video will also be available later on the same site under "Archive." The hearing is scheduled to begin at 10:30 a.m. and last about an hour. Since there is certain to be an overflow crowd trying to get into the Courtroom on Wednesday morning, the streaming might be a better way for the general public to observe the proceedings than trying to secure a seat in the Courtroom. One can watch the streaming on one's own computer in the comfort of one's own home thus avoiding having to arrive at dawn, trying to find a parking space in walking distance, standing in a long line for hours, and then perhaps being told there are no seats left for the public. No doubt most of the spaces in the Courtroom will be taken by the hordes of lawyers, officials of the two sides and their entourages.



PREPARING FOR THE
SOUTH CAROLINA SUPREME COURT HEARING

In a few days, the South Carolina Supreme Court will hold a hearing in the case of the appeal of the Episcopal Church (TEC) and the Episcopal Church in South Carolina (ECSC). Anticipation is building. This will be the most important legal event in the schism since the two sides split in October of 2012. TEC and ECSC are asking the state supreme court to overturn a circuit court ruling. On February 3, 2015, Judge Diane Goodstein, of the state circuit court in Dorchester County (St. George), issued her decision called the Final Order. She found all in favor of the schismatic side called the Diocese of South Carolina (DSC).

The hearing will occur on Wednesday, September 23, at 10:30 a.m. in the Courtroom of the state supreme court building in Columbia. As far as we know, all five justices will be in attendance. To my knowledge, Justice Kaye Hearn has not recused herself from this case, nor has she been asked to do so. Hearn is an active member of St. Anne's Episcopal Church in Conway, the local church in ECSC. She is the only Episcopalian on the bench.

The purpose of the hearing is to consider Goodstein's Final Order of Feb. 3. The TEC/ECSC side is asking the court to overturn the decision. The DSC side is asking the court to uphold the decision.

The set-up of the hearing is to give one side 20 minutes to present its case to the five justices, to give the other side 20 minutes, then 10 minutes for rebuttals. The verbal interchange is only between the lawyers and the five justices.

What can we expect in the hearing? The lawyers will make a prepared "presentation" to the judges, but the judges can interrupt them and ask any question they wish of the lawyers making the presentation. The questions the judges ask are crucial in sensing the direction they will go in their decision-making process. Listen very carefully to the questions themselves and the tones in which they are asked. Be aware too of what topics the judges emphasize as well as what they do not ask. Also, notice if the justices show any opposition to each other.

ISSUES

The issues in this case are clear and have been spelled out in the several briefs and counter-briefs both sides have issued since February 3.

1. What is the structural relationship between the Episcopal Church and a diocese?

DSC---TEC is not hierarchical. Dioceses are "autonomous" and self-governing entities.

TEC/ECSC---TEC is hierarchical. Dioceses are bound to the Church by the Constitution and Canons; clergy are bound to the Church by vows.

Goodstein's Final Order found DSC to be an independent entity entitled to all legal rights under state law. In fact she declared TEC to be a congregational institution organized from the bottom up.

2. Is this a religious or a property dispute?

DSC---property only. "Neutral principles" must be applied and have been applied properly by the circuit court in its Final Order.

TEC/ECSC---religious. Relationship of DSC to TEC was an issue internal to the Episcopal Church. The U.S. Constitution and the laws prohibit a court from interfering in the internal matters of a church. Court must follow "deference" in this case.

Goodstein's Final Order declared it followed "neutral principles" but then gave a long list of judgments on the relationship between the Episcopal Church and its local diocese. She saw this as only a property dispute while going beyond that.

3. Did TEC and its diocese own the properties of the parishes in question?

DSC---No, because a trust was never established for the properties. State law requires that.

TEC/ECSC---Yes, because TEC established the Dennis Canon, and DSC adopted the Canon. The Canon said all local property was held for the diocese and the Episcopal Church.

Goodstein saw no interest of the national Church in the local properties.

4. What is the relevance of the All Saints/Waccamaw decision of 2009 (the SC Supreme Court decision recognized property owned by a local parish)?

DSC---proves Dennis Canon is not applicable in the state of South Carolina an that all local property is owned by the local parishes.

TEC/ECSC---decision applied to one parish only. In this case DSC argued in court that it was part of a hierarchical church, therefore DSC cannot now argue it is not part of a hierarchical church.

Goodstein cited the All Saints decision four times in her Final Order. Later she declared the case had no relevance to the matter at hand.

JUSTICES

What to look for among the five judges.

Chief Justice Jean Toal wrote the All Saints/Waccamaw decision of 2009. Listen carefully to her references to this decision in the questions she asks. How relevant does she see it to this case? How defensive will she be of her own earlier decision? Judges are usually highly reluctant to revise earlier decisions, let along reverse them. If Toal becomes very defensive of the All Saints decision, that could be a favorable sign for the DSC side. If she questions the relevance of All Saints to the present case, that would bode well for TEC/ECSC.

The next most important judge to watch is Hearn since she is an active Episcopalian. Pay attention to how many questions she asks, to whom she directs them, what she asks, and the tone of her words.

Then, Justice Beatty is the next to watch since he is the only justice presently on the court other than Toal to have signed the All Saints decision of 2009. As with Toal, pay attention to his attitude to the references to the All Saints case. Will he see relevance? Will he defend the 2009 decision in this case?

The other two justices, Kittredge and Pleicones, are new to the court and had no connection to the All Saints case and have no connection to either side in this appeal. Coming from this disinterested background, it will be important to see what issues they think are the important ones here. One should pay close attention to their words too.

It is just my conjecture, but I could see these last two as the "swing" votes on the bench. I can envision a scenario where Toal and Beatty side with DSC to defend their earlier decision while Hearn sides with TEC/ECSC. If that is the case, the other two justices will decide the outcome as the decision will be by majority vote among the five. One side has to get at least three votes to carry the court's decision. Toal and Beatty would have to convince one "swing" vote, but Hearn would have to persuade both "swing" votes.

HOW DO THE TWO SIDES COMPARE?

We can expect all 40+ lawyers for DSC to appear as well as attorneys for TEC and ECSC, presumably the same who took part in the circuit court trial of July 2014.

TEC/ECSC has the harder task in that they must convince a majority of the justices that something is fatally flawed in Goodstein's Final Order. They must make a convincing case of the errors or commission and omission in the Order. They cannot simply disagree with the decision. They must demonstrate why it is not acceptable either by wrong principles used or the faults in how those principles were carried out. Bottom line, they must show why this is a religious dispute and not just a property one. If it is religious, then the court would have to follow "deference" and that would be to the advantage of TEC/ECSC.

No doubt it will be months before we get the written decision of the state supreme court in this case. However, we should have a good idea of the attitudes of the five judges by the end of the hearing on next Wednesday. That will give us some indication of how the case will move into the decision phase.

DSC is praying for God's help. They have declared that God is on their side. I rather doubt that God choose sides like that. Let's all pray that God will be with everyone in the Courtroom, judges, lawyers, and spectators alike. We are all in the same boat whether we are crowding in opposite ends or not. We are all Christians and we ought to behave like it. 

CIVIL WAR ON THE RIGHT

For American society as a whole, the front of homosexuality in the culture war is now closed. The Supreme Court has ruled. Equality for homosexual persons is settled. People such as county clerk Kim Davis are fighting post-war Battles of New Orleans; but even she knows the war is over as she has agreed to let her deputies issue marriage licenses to same-sex couples. Of course there are still holdouts on the right who think the war is still on like Japanese cave soldiers, but they are rather lonely exceptions to the rule.

However, it appears an all-out counter-revolutionary civil war is on between two rival factions on the right. It seems anti-Episcopal Church "orthodox" groups have turned their guns on each other about how they should react to the Supreme Court ruling. Wes Hill is on one side. Remember him? He is the openly gay Trinity School for Ministry prof who presented a talk in DSC last year. He advocates the theory of the innate nature of homosexuality. The "conventional wisdom" among conservative Christians is that homosexuality is a choice of lifestyle and not inborn. Hill also advocates "friendship" and celibacy among gays. He is one who maintains a website called Spiritual Friendships. In the wake of the Supreme Court ruling, he posted an essay on June 28 expressing some admiration for the effects of the ruling: "Hoping for Love," (http://spiritualfriendship.org/2015/06/28/hoping-for-love/#more-5786).

Apparently, the entrenched hardliners were outraged even by this rather mild sentiment. Robert A.J. Gagnon wrote a lengthy and scathing reply, "On Valorizing Gay Marriage: A Response to Wesley Hill." It was posted on the website Stand Firm (www.standfirminfaith.com/?/sf/page/31932). Gagnon is a prof at the Pittsburgh theological seminary only a few miles from Trinity. Apparently geography is the only thing that makes these two profs close. For years Gagnon has been the academic standard-bearer for the "orthodox" position that strongly condemns homosexuality. Bishop Lawrence relied on his writings in his war against the Episcopal Church.


I recommend that everyone read Hill's and Gagnon's essays and the comments below them to get a helpful picture of the civil war now waging on the right.


In the wake of the recent victory of homosexual equality, right-wing Christians are falling apart on how to respond. There is no solid block of opposition left. The spat between Hill and Gagnon illuminates this phenomenon.

Meanwhile, the DSC leaders are stubbornly holding the hardline against rights for homosexuals. As I have pointed out, the new DSC creation called the Anglican Leadership Institute requires all applicants for the semester program in Charleston to sign a statement rejecting marriage equality for homosexuals and rejecting the authority of the Episcopal Church. No signature against homosexuality and the Episcopal Church, no admittance. 

Note to DSC: the culture war on homosexuality is over. American society is moving on. The world is moving on. Even among "orthodox" Christians, ranks are breaking up as they are bound to do. Statistical studies show that even conservative Christians are moving toward acceptance of gays.


DSC would do well to invite Prof. Hill back to the Low Country for more talks. If DSC continues fighting a war that is already over, it has no where to go but to oblivion.       

TWO YEARS

This blog celebrates an anniversary today. I started it on Sept. 11, 2013. My purpose was then, and still is now, to inform readers of my progress on writing a history of the schism and to provide information and commentary about the ongoing events of the schism. My bias is admittedly pro-Church, but I am also trying to provide all the apropos material from both sides. As for the history, a manuscript is coming right along. I keep waiting for some closure to finish the story; and who know when that will happen? No time soon, I'm afraid.

As for the information and commentary, I have posted 112+ essays on this blog. A few I deleted as only of temporary interest. As of today, this blog has had 73,609 visits in the two years. Much of the interest came during the circuit court trial in July of 2014 when around 500 people a day clicked on. By far the most popular post has been "Chronology" with 2,976 visits. In this I have tried to give a timeline of important events in the history of the schism. Obviously, many people have found this useful. A couple of the posts "went viral" on the Internet. One was "The Confederacy and the Independent Diocese" that was listed on various Facebook sites and had over 1k hits in one day. Also, the item on "News Flash, Lambeth Palace..." was posted on EpiscopalCafe with the same result. That one punctured Bishop Zavala's claim that he was in SC for the Archbishop of Canterbury. I am gratified that so many people have found my posts of interest. I hope they have found them beneficial. In the end, though, no one has benefited from this blog as much as I have.

So, what is the status of the schism now, almost three years after the break occurred on October 15, 2012? Here are some points I would emphasize today:

1- The horizontal/vertical division is as great as ever, if not more so. Readers of this blog will be familiar with my theory of the conflict between the horizontal and vertical philosophies of religion. In short, horizontal is outward-focused, a communal sense of spreading the Gospel through improving conditions in the society all around us. Vertical is inward-focused, an individual sense of salvation between one person and God. The Episcopal Church adopted the horizontal approach around 1960 to produce its participation in racial equality, women's equality, and rights for homosexuals in the Church. The vertical side of the Church either peeled off into splinter groups or went into internal minority status. The leadership and majority of the Diocese of South Carolina (DSC) decided to peel off TEC into its own realm. Nearly three years on, DSC remains indifferent to racism, very lukewarm to women's equality, and strongly homophobic.

A perfect example of the differences of the two dioceses can be seen in the aftermath of the Emanuel Church massacre in Charleston on June 17, 2015. The DSC leadership called for prayers, attendance at memorial services, and, off handedly, for contributions to memorial funds. That was it. The Episcopal Church in South Carolina (ECSC) called for all of that plus more, much more. ECSC took money from its own budget to contribute to the Emanuel funds. Even more importantly, ECSC set up a diocesan-wide program to actually do something to combat the evil of racism in South Carolina. It is high time. Historically, the Diocese of South Carolina has been the most racist of all of the 110 dioceses of the Episcopal Church. In September of 2015, all around the diocese, ECSC will conduct four three-hour seminars on racism based on the story of the DeWolf family. All of the parochial leaders are required to attend one of the sessions; and everyone else is strongly urged to attend. The story of the slave-trading DeWolfs is fascinating and compelling. So there you have it. DSC's vertical response to the massacre was essentially prayers to God for help. ECSC's horizontal response was to pray to God then do something about the problem in the society all around it, to get actively involved to bring an end to the sin of racism in South Carolina.

2-A second point I would emphasize is that DSC is virtually an independent denomination. "Bishop" Lawrence and the ruling clique have steadfastly refused to join any larger institution, most importantly the Anglican Church in North America. It has been "recognized" by Global South in a meaningless oversight scheme to give itself a fig leaf of "Anglican" identity. There is no sign that DSC has any intention of joining any larger group.

In fact, DSC is forging right ahead with its own separate identity. It has just set up "The Anglican Leadership Institute." (www.anglicanleadershipinstitute.com) This "Institute" turns out to be a creation of, by, and for DSC. The Board of Directors lists 19 people with, of course, Mark Lawrence as Chair. Many of the 19 are in the ruling clique or are close allies. As the Directors, the faculty are mostly in the leadership of DSC or allies. An applicant can get a full scholarship to attend a month-long course, to be held in DSC, naturally. The big catch is the applicant must sign a pledge of allegiance to "The Jerusalem Declaration." Remember that? The anti-homosexual rights Anglican dissidents drew up the Jerusalem Declaration in 2008 right as they set up GAFCON, also to oppose gay rights. To refresh memory, provision # 8 of the Declaration stated "marriage between one man and one woman." Provision # 13 said "We reject the authority of those churches and leaders who have denied the orthodox faith in word and deed." This clearly meant rejection of the Episcopal Church in the U.S. and the Anglican Church of Canada. (Recall that Mark Lawrence enthusiastically participated in the Jerusalem meeting just six months after making a solemn oath before God and everyone of loyalty to the Episcopal Church). The Declaration, GAFCON, and related groups as Global South and Fellowship of Confessing Anglicans all came about in the wake of the issue of rights for homosexual persons that swept the Canadian and American churches after 1980. Such groups as GAFCON did not exist before then. Thus, to participate in DSC's new "Institute" one has to make a written pledge of opposition both to marriage equality and to the Episcopal Church via a signed agreement of adherence to the Jerusalem Declaration.

Last year when DSC promoted the appearance of Prof. Wes Hill, I thought then the DSC might be softening its homophobia. Hill, recall, was the Trinity School of Ministry teacher who was openly gay and taught that homosexuality was inborn (he also called for lifetime celibacy). My hopes were dashed when the diocesan convention last March overwhelmingly passed three anti-homosexual resolutions. With those resolutions, and now the "Leadership Institute" we can see DSC's opposition to rights for homosexual persons is as strong as ever if not stronger. Wes Hill was only an aberration.


This brings us back to the fundamental question about the reason for this schism. We know now it was not about property. Then what was it about? It seems to me to be about some grandiose scheme of transforming the Anglican world, or, as Lawrence is fond of saying, making biblical Anglicans for the twenty-first century. This is a war against the sinful, evil old Episcopal Church that has been taken over by unorthodox forces. If this little independent church of 18,000 members in the Low Country thinks it is going to transform the 80-million-member worldwide Anglican Communion, the word that comes to my mind is "delusion." Regardless, what the ruling clique of DSC is really doing is continuing a long war against the Episcopal Church. It seems to me that is what this schism is all about. That is why the DSC ruling clique has refused offers of negotiated settlement and is likely to continue doing so. Apparently they see this as a great war of good against evil. There can be no compromise with evil. They will go on fighting the good fight until the bitter end; and I expect that is what it is likely to be, a bitter end.


3- What about sexism in DSC? It has not been welcoming, to say the least, to women's equality. There are very few women clergy in DSC; and not one medium or large parish is led by a woman priest. Not one important committee of DSC has ever been chaired by a woman, nor even had a majority of women members. Mark Lawrence has ordained two women deacons, but has apparently never ordained a woman to the priesthood. The diocese he came from, San Joaquin, was one of only three that refused to allow women to be ordained to the priesthood (the three voted to leave TEC).

Now word comes that Lawrence is about to ordain to the priesthood Martha Horn, one of the two women he ordained to the diaconate. This will be a first for Lawrence. Is this too an aberration, or does it portend a new attitude favoring women's rights? Horn is to be ordained to the priesthood on October 3 in Hilton Head. This is really a wonderful thing in more ways than one. The July 22, 2015 e-newsletter of DSC had an article about Horn and her husband, the Rev. Robert Horn, of Holy Apostles in Barnwell. Both are battling very serious cancer: "Martha who is also battling cancer (which started as breast cancer and metastasized to her liver and spine) is on a new chemo regiment. Unfortunately the cancer has come back in a few places..." I think we should all give Mark Lawrence a big shout-out of thanks for two reasons, giving this sweet gift to Martha Horn, and for agreeing to ordain a woman for a change. What this might mean for other women down the road in DSC we will just have to wait and see. Let's hope it is not just another false sign of progress, as Wes Hill's visit was. Anyway, let's all give sincere thanks to Mark Lawrence for doing this for Martha Horn.

4- The animosity between the two sides seems stronger than ever. The litigation only grows on itself. The two are at war in both state court and federal court at the same time with no end in sight. In June, the Church side made a generous offer to give the 36 DSC parishes independence and all of the property in return for the legal rights and assets of the diocese. This would have been a landmark settlement, something the Episcopal Church had never offered anyone else. DSC flatly rejected the offer and did so in a hateful way. DSC is now rolling the dice on it all in state and federal court. It's win all or lose all.

The two sides are about to go to the highest court in South Carolina. The state supreme court will rule on the Church's appeal of the circuit court decision. That ruling, probably months away, will also probably not be the end of the story as it will likely be appealed to the U.S. Supreme Court. Meanwhile, the federal court in Charleston is considering a suit of the Church bishop asking for legal recognition as the bishop of the Episcopal diocese. Millions of dollars have gone into lawyers' pockets, with millions more to go. Shame.

It is impossible to know how the state supreme court will rule. At first, I assumed they would simply validate the lower court. However, the more I read Goodstein's far-out-of-the-mainstream decision and the briefs and counter-briefs since, the more difficulty I have in believing high-level judges would agree with Goodstein. Although the Church lawyers have the harder task at hand, I think they have a fighting chance to get the high court to reconsider the lower decision. We will have a better idea of this after the hearing of the 23rd. I plan to be in attendance at the hearing and will post a comment on this hearing as soon as possible afterwards.

In summary, the two parts of the grand old Episcopal Diocese of South Carolina seem farther apart than ever. The minority is doing well as a constituent part of the Episcopal Church but has its work cut out in court. The majority has gone off on its own as an independent church under a "bishop," who shows no indication of joining any larger group.  

As I have said many times on this blog, time and tide are against the schismatic diocese. The causes it resisted are all coming to pass, even in highly conservative South Carolina. African Americans, women and homosexuals are all gaining greater and greater equality in South Carolina as in all of America, indeed the western world. DSC is on the wrong side of history and will gradually sink into irrelevancy. I still believe reconciliation will occur down the road, and then there will be a great deal of healing that will have to take place. It took eighty years for the "Schism of 1887" to be healed in the diocese of South Carolina. But it was healed and what seemed to be impossible did become possible. Blacks did gain equality in the diocese. The "Schism of 2012" will be healed too. It will happen.                

AWAITING THE SOUTH CAROLINA

SUPREME COURT HEARING

On Wednesday, September 23, the South Carolina Supreme Court will hold a hearing in the case of the two rival dioceses in the lower state.

When?

10:30 a.m. on September 23, 2015. This time is fixed as the Court has already ruled that no extension will be granted.

Where?

The Courtroom of the South Carolina Supreme Court building at 1231 Gervais Street, Columbia, across from the state house. The hearing is open to the public on a first-come basis. Security personnel at the entrance will direct the seating of the hearing (there are two other unrelated hearings scheduled before the Church case, at 9:30 and 10:00).

What?

The Episcopal Church diocese is appealing Judge Diane Goodstein's decision. On February 3, 2015, Goodstein issued her "Final Order" finding all in favor of the independent diocese and rejecting all the claims of the Church side. The Episcopal Church (TEC) and the Episcopal Church in South Carolina (ECSC) are the "Appellants." The independent diocese (at present legally the Diocese of South Carolina and The Protestant Episcopal Church in the Diocese of South Carolina) is the "Respondent."

Owing to the unusual size, complexity, and importance of this case, the Court has scheduled 50 minutes for the hearing. Most hearings are set at 30 minutes. Each side will be given 20 minutes to make its case before the bench of five justices, then 10 minutes for rebuttals. As in the U.S. Supreme Court, although each side will prepare a "presentation" to the Court, that time is usually taken up by the justices asking pointed questions of the presenting lawyer(s) standing before them. The judges will have already studied the briefs, papers, and history of the case beforehand. The hearing is their only opportunity to get the clarifications and explanations they want from the lawyers. The justices' questions are clues to their thinking and attitudes in the case. A hearing is not a trial. There is neither jury nor witnesses. The five justices alone "hear" the attorneys; and they alone will make the final decision. At some time after the hearing, the justices will discuss the matter in private and vote, then one will write the majority opinion. Six months is the typical time from a hearing to the issuance of the written order in the case. If so, we could expect a decision in early 2016 although a decision could be handed down at any time.

An audio recording of the hearing will be available on CD a couple of days after the hearing. It can be purchased for $20 from the office of the Clerk of the South Carolina Supreme Court.

The biographies of the five justices are available on the Court's website. Jean Hoefer Toal is Chief Justice and has been since 2000. She is 72 years old and a Roman Catholic. She wrote the All Saints/Waccamaw decision for the Court in 2009. It recognized the local parish as legal owner of its property rather than the diocese. The diocese, under Bishop Lawrence, did not appeal to the U.S. Supreme Court. This is the only final decision in the U.S. that ended on the side of the local party against the Church side. Chief Justice Toal is set to retire on Dec. 31, 2015. Three other justices concurred with Toal in the All Saints decision, but only one of them is still on the Court, Walter Beatty. The three new justices on the Court are: Costa Pleicones, a Greek Orthodox from Greenville; John Kittredge, a Presbyterian from Greenville; and Kaye Hearn. Hearn is an active member of St. Anne's Episcopal Church in Conway, the congregation formed by Episcopalian refugees from the local schismatic parish. In early 2013, her husband, an attorney and not a Church official, was inexplicably subpoenaed by the independent diocesan lawyers to give a deposition for the circuit court case.

What is the Purpose of the Hearing?

The purpose is to consider Circuit Court Judge Goodstein's Final Order of Feb. 3. The Church side is appealing that decision. It is asking the Court to overturn Goodstein's ruling. The opposition is defending that same decision before the Court. They want Goodstein's ruling to stand as is.

What is the Legal Background of the Hearing?

The hearing is the result of a series of legal events.

1. Feb. 3, 2015. Judge Diane Goodstein, of the state circuit court, in Dorchester County (St. George) issued "Final Order." This was the result of a two-year legal process. To begin, Alan Runyan and other lawyers filed a lawsuit in Goodstein's court on Jan. 4, 2013 against the Episcopal Church (and later the Episcopal Church in South Carolina). They claimed all the legal and property rights of the pre-schism Episcopal Diocese of South Carolina. In time, 36 individual parishes joined the suit on the side of the independent diocese. A trial was held in Goodstein's courtroom in July of 2014 involving numerous witnesses and a host of evidentiary documents. The judge claimed she followed only "neutrality" but some people felt she relied on the independent diocesan side. The two sides presented to Goodstein their lawyers' "orders" [requests for judgment] in December of 2014. Goodstein's decision, a 46-page Final Order was entirely in favor of the independent diocese. She ruled that the Episcopal Church is a congregational institution where power flows from the bottom to the top and that the diocese was a sovereign and independent entity free to leave the Episcopal Church at will. She awarded all rights and assets to the independent diocese. This was the most sweeping judgment of any court in the U.S. against the claims of the Episcopal Church. It is this Final Order that the Church lawyers are asking the state supreme court to overturn.

2. Feb. 13, 2015. Church lawyers asked Goodstein to reconsider her decision. They submitted to her a monumental 182-page rationale outlining a very long list of what they saw as errors and lapses in the Final Order.

3. At 11:55 a.m., Feb. 23, 2015, the independent diocesan lawyers submitted to Goodstein a response to the Church lawyers' request for reconsideration.

4. At 5:07 p.m., Feb. 23, 2015, Judge Goodstein issued a denial for reconsideration in a two-page order.

5. March 24, 2015, the Episcopal Church and the Episcopal Church in South Carolina asked the state supreme court to accept their appeal from the circuit court, thereby bypassing the state court of appeals.

6. April 15, 2015, the South Carolina Supreme Court agreed to accept the appeal from the circuit court. It also refused the request of the independent diocese to expedite the case and declared a fixed date for a hearing of Sept. 23, with no chance of delay. With this, the South Carolina Supreme Court became the first state supreme court in the nation to agree to hear a case involving the relationship of the national Episcopal Church and a local diocese. The Pennsylvania, Texas, and Illinois supreme courts had all refused to take similar cases and left the decision to the lower courts.

7. May 15, 2015, TEC and ECSC lawyers filed a 52-page brief with the state supreme court giving their reasons why Goodstein's Order should be vacated.

8. June 15, 2015, independent diocesan lawyers filed a 59-page brief with the state supreme court giving their reasons why Goodstein's decision should be upheld.

9. June 25, 2015, TEC and ECSC lawyers filed a 25-page reply brief in response to the independent diocesan lawyers' brief of June 15.

All of the above documents can be found on the Episcopal Church in South Carolina's website.

What are the Issues Involved?

The basic issue in this case is the legal relationship between the national Episcopal Church and its local dioceses, in this instance the Diocese of South Carolina. In a nutshell, the independent diocesan lawyers claim that the diocese is an independent and self-governing body with a distinct legal identity under state law. This fact entitles it to disassociate from the Episcopal Church and keep intact all its legal rights and assets. They see the Episcopal Church as a voluntary organization lacking the institutional right to rule over its dioceses (no supremacy clause) and to prevent any diocese from leaving the Church (no clause preventing secession).

On the other hand, Church lawyers argue that a diocese exists only in context of the Episcopal Church that is governed by a single Constitution and Canons. Except for local matters, all issues of the Church are settled by the General Convention and applicable to all dioceses equally. Once a diocese accedes to the Church's Constitution and Canons, as South Carolina did in 1789, it is subject to that document. It cannot disregard it. Moreover, all clergy in every diocese are required to make an ordination vow to obey the discipline of the Episcopal Church and, once made, are not free to disregard that vow.

In general, courts have followed two different approaches to cases involving religious institutions, deference and neutrality. Deference is deferring to the religious institution to settle its own disputes. Neutrality is adjudicating a property-related case treating two sides neutrally and equally. The First Amendment of the U.S. Constitution established the first and greatest right, freedom of religion: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." Following the principle of the separation of church and state, a court is not allowed to interfere in the internal working of a church. Churches must be free to manage themselves. However, courts have also said that cases may be adjudicated on "neutrality" if they concern only property disputes and the courts treat both sides neutrally. However, under the neutrality principle, no court can interfere in the internal working of a church.

South Carolina courts have followed the neutrality principle. The state supreme court justices claimed they followed it in their famous All Saints decision of 2009. Judge Goodstein claimed she followed it. The independent diocesan lawyers are now asking the state supreme court to agree that Goodstein followed neutrality properly while the Church lawyers are asking the court to discard her ruling as a breach of neutrality. They say she violated both the First Amendment and neutrality by making many improper judgments on the internal affairs of a church. It will be up to the state supreme court justices to decide whether Goodstein adhered to neutrality.


As I see it, the possible effective strategies of the two sides in the hearing are fairly clear. The independent diocesan lawyers must convince the justices that Goodstein's Order scrupulously adheres to neutral principles. They must follow the path of "strict construction," that is, holding the Episcopal Church to the letter of the law in its Constitution and Canons. On the other side, the Church lawyers have two possible tracks of argument. In one, they can press the charge that Goodstein went well beyond the allowable bounds of neutrality by repeatedly judging the internal working of the Episcopal Church. In the second, they can argue that this particular case is not appropriate for neutrality since it necessarily involves the court's probing into the structure of a religious institution. Under the First Amendment, the government is not allowed to infringe on freedom of religion. Therefore in this particular case, the Episcopal Church must be free to manage its own affairs. Since the state supreme court followed neutrality in its 2009All Saints decision, the Church lawyers must convince the justices that the present case is fundamentally different that that of 2009. In 2009, the issue was between the diocese and a parish and involved only a property. The present matter concerns the institutional nature of a national religious institution and involves far more than property. For the Church side to win on deference, its lawyers must present a compelling argument to differentiate the 2009 decision from the 2015 appeal.


It seems to me the second track is the strongest case the Church lawyers can make. They should ask that neutrality be replaced by deference in this case. And, the best evidences for this are found in the text of Goodstein's Order. See the post on this blog of Feb. 5, 2015, "Reflections on Judge Goodstein's 'Final Order' of Feb. 3, 2015." See also the post of Feb. 16, "ECSC's Lawyers Devastate Goodstein's Decision." I see Goodstein's judgment going well beyond the allowable bounds of neutrality to violate the First Amendment. There are too many instances of this in the Order to list here, but as an example the startling assertion that the Episcopal Church is a congregational institution (did not the word "episcopal" have any meaning?). Another is the mindboggling declaration that the Episcopal churches in the diocese were never members of the Episcopal Church (in what other church were they?). The rationales for these head-scratching charges were either thin or non-existent in the Order. It seems to me to be clear that the case of DCS v. TEC and ECSC cannot be adjudicated under neutral principles. It must be given deference because it requires judgments on the internal working of the Episcopal Church and it involves issues far beyond just real estate, both of which are not allowed under the neutrality principle. The First Amendment to the Constitution protects the Episcopal Church's right to govern itself.    

What are the Possible Decisions of the State Supreme Court?

While I am neither an attorney nor an authority on state courts, these are what I see as the likely outcomes:

1-The Court could validate Goodstein's Final Order.

2-The Court could find fault in one or more aspect of the Final Order and remand it to Goodstein with orders for reconsideration.

3-The Court could discard Goodstein's Final Order and consider the case de novo, or anew. The Church lawyers are asking for this. They assert the Order is so replete with errors of commission and omission that it can only be completely scrapped and replaced by a new decision of the state high court.

The Church lawyers have made a major point that Goodstein blatantly violated the First Amendment and the principle of neutrality. The burden will be on them to prove this. If they are successful, the Court may agree on starting anew. One should listen carefully to the questions the justices ask in the hearing to get a sense of their attitudes. What questions they ask and how they ask them will give us clues to where they are going in this case.

What about the Federal Court Case?

This is the wild card.

In the federal court case, Bishop vonRosenberg is asking the court to recognize him as the only legal bishop of the Episcopal Diocese of South Carolina.

Judge C. Weston Houck, of the U.S. District Court in Charleston has been directed by the U.S. Appeals Court to reconsider his case under a different principle that will work to the favor of the Church side. He has taken written arguments from both sides, but one can have no idea of when Houck will proceed with the case. He said earlier that the Episcopal Church is hierarchical and that Mark Lawrence had renounced his vows. He also said that the federal case is not dependent on the proceedings in the state supreme court. If the federal case is resolved first, one can only wonder what the effect will be on the state court. In the American constitutional system, federal courts are superior to state courts.

What Happens after the State Supreme Court Rules?

That depends on the ruling. If the justices remand the case to Judge Goodstein with directions for changes, the matter could drag on for years with no indication of the final outcome.

If the decision is simply to validate Goodstein's Order, the Episcopal Church and its diocese could appeal to the U.S. Supreme Court. I imagine this as a probability. It may well be that the high court would welcome this case as a way of clarifying the confusion that has resulted from deference and neutral principles. The First Amendment and separation of church and state are fundamental to American democracy.

If the Episcopal Church should prevail in the state supreme court, the independent diocese would have to decide whether to appeal to the U.S. Supreme Court. An appeal would cost more money, something that has been in apparent short supply lately. Of course if DSC loses and does not appeal, it would presumably have to turn over all rights, money, and property to the Episcopal Church diocese. The followers of Lawrence would have to start anew on their own without church buildings or any other property or assets. The Church diocese has already offered to give the 36 parishes their property in return for the legal rights of the diocese, but the independent leaders rejected the offer. By refusing a compromise settlement, Lawrence and his lawyers are gambling for it all in the supreme courts.

Whatever the decision, it will be a landmark in the history of the Episcopal Church and its dioceses. It will be the first state supreme court ruling on the relationship of Church and diocese. Numerous state supreme courts have ruled on the relationship of diocese and parish, almost all on the side of the diocese. Perhaps the most famous of these is the Georgia decision on Christ Church of Savannah, a complete diocesan victory over a schismatic parish.

Recommended Reading

James Dator and Nan Nunley, Many Parts, One Body; How the Episcopal Church Works (NY: Church Publishing, 2010. 192 p.). Based on a doctoral dissertation, this is the definitive work on the institutional structure of the Episcopal Church. Dator finds a unique arrangement, neither a confederation as in the Articles of Confederation, nor a federation as in the U.S. Constitution. He calls the structure a "unitary" system where the original nine states (dioceses), including South Carolina, composed and ratified on the spot in General Convention in 1789 a constitution and canons governing all of the nine. New dioceses would be admitted to this union only after they acceded to these documents. All decisions for the Church would be made as one body in the General Convention. This union implied permanence. 

Judge Donald S. Black, "Tentative and Proposed Statement of Decision," Superior Court of California, County of Fresno, May 5, 2014. Follows Dator. "Diocesan Conventions...may not conflict with the Church's Constitution and Canons," "...only the General Convention as a whole, or the Executive Council can speak for, act on behalf of, or is authorized to bind the Church." "Diocesan bishops are at all times subject to and bound by the Church's Constitution, Canons and Book of Common Prayer. None of these documents authorizes a diocesan Bishop to waive, to declare null and void, or modify or amend any of the Church's Constitution and Canons." Black's decision is the strongest yet in a state court on the rights of the Episcopal Church. (It is being appealed).

Some Final Thoughts

The schism in South Carolina occurred close to three years ago. Almost immediately the independent diocese went to court to sue the Episcopal Church. Litigation has filled the time since. The Church offered a compromise settlement in June. The people who sued first refused. There is no end in sight of these shameful lawsuits. Even if it were to be over tomorrow, the history of this once grand and great diocese is marred forever. The damage, cost, and destruction of all of this will be felt for a long time to come. The saddest part is that it was all avoidable. This schism was completely unnecessary. Nevertheless, the two sides are now mired in the quicksand and there is no apparent way out. The litigation will drag on for months, probably years, to come dragging everyone involved down.

The fundamental issue in dispute is the relative authority of the national Church and its dioceses. The question is, Where does sovereignty ultimately rest, in the national Church or in the local diocese? One side insists in the Church, the other in the local diocese. This issue is really a historical question. What does history tell us about the relationship of the Diocese of South Carolina to the national Church?

Space does not permit here a long discourse on this question. I have made remarks already in some posts, such as "A History Lesson," June 17, 2015. Suffice to say that my research has shown me that the Diocese of South Carolina saw itself only as part and parcel of the Episcopal Church (except for the temporary interlude of the Civil War), from the start in 1785 to the rise of the issue of homosexuality in the 1980's. Starting in 1982, under Bishops Allison then Salmon, the Diocese began to deliberately move away from the mainstream of the Episcopal Church. Farther and farther it went. Even as most of the conservative dioceses resolved to bite the bullet and stay in the national Church, the leaders of the Diocese of South Carolina plotted to leave the Church. According to the Standing Committee records, the final decision was made at least weeks before the officials carried out the schism in October of 2012. The rationale they gave for the schism was a supposed legal right to secede from the union. It was a misinterpretation of history and the Constitution and Canons of the Episcopal Church. Nevertheless, the majority of communicants bought it. Judge Goodstein bought it. Now, we will see if the five justices of the South Carolina Supreme Court will buy it.