A CLOSER LOOK AT THE 

SC SUPREME COURT DECISION

The First Amendment to the U.S. Constitution:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..."

The Dennis Canon (The Episcopal Church, 1979):

"All real and personal property held by or for the benefit of any Parish, Mission, or Congregation is held in trust for this Church [the Episcopal Church] and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons."

By now everyone knows the essential parts of the SC Supreme Court decision of August 2, 2017: TEC and the Church diocese regain control over 29 parishes, 7 parishes are left as sole owners of their properties, and Camp St. Christopher returns to TEC and the Church diocese.

At this point it would be instructive to take a closer look at the actual decision and what all of this may mean. I should remind readers that I am not a lawyer or legal expert. My views here are only the thoughts and opinions of an ordinary layman.

The decision is really a collection of five different opinions, one by each of the justices. 

The justices split into two camps: Costa Pleicones and Kaye Hearn, versus John Kittredge and Jean Toal. In the middle was the "swing" vote, Justice (now Chief Justice) Donald Beatty.

For simplicity sake, we can call the P and H side, "the national church," and the K and T side, "the local church." 

The National Church side:

PLEICONES

P delivered a sweeping opinion strongly supporting the Episcopal Church and dismissing all the arguments of the dissenters. He delivered a 17 page opinion taking the "lead" for the majority. 

P declared TEC to be hierarchical and said civic courts could not interfere in a hierarchical church. He asserted the deference principle: If the dispute is "a question of religious law or doctrine masquerading as a dispute over church property or corporate control," then the Constitution of the United States requires the civil court defer to the decision of the appropriate ecclesiastical authority. P insisted that the whole problem in SC developed from doctrinal, that is, religious, issues.

He dismissed the circuit court trial and decision of Judge Goodstein as "erroneous and prejudicial" and insisted her entire order should be overturned. 

Next he went to great lengths to refute Toal's signature work of the All Saints decision of 2009: I would now overrule All Saints to the extent it held the Dennis Canon and the 1987 amendment to the Lower Diocese's Constitution were ineffective in creating trusts over property... It was too narrow and localized and failed to understand the relationship between the local and national church. Moreover, P said the Dennis Canon did in fact create a trust in South Carolina because it was part of the hierarchical church. 

He was not through. P went on to declare the schism to be a premeditated conspiracy (ECSC atty Tom Tisdale had charged this in the circuit court): The record demonstrates that Bishop Lawrence and others in the Lower Diocese determined to leave TEC and take with them the property of those parishes in the Lower Diocese that were intending to disaffiliate. P outlined several steps in the conspiracy: amending governing documents, granting quit claim deeds, and revising corporate documents.

Finally P concluded that the court had to accept as final and binding the decisions of the Episcopal Church in regards to the local diocese. The Church must control its own decisions, not the court: The civic courts in South Carolina cannot decide disputes which are governed by church polity and governance concerning property ownership.

In sum, P discarded the Goodstein decision, the All Saints decision, and insisted all the matters of property and names, titles and rights of the pre-schism diocese were the prerogatives of the Episcopal Church, not the civic courts. In the end, he declared the preeminence of the First Amendment. 

No one could have written a stronger opinion for the national Church.

HEARN

After P's "Lead" opinion, Hearn really needed to do little but echo it and add a few supporting elaborations on the same themes in her 15 page decision. She too insisted the dispute had grown from doctrinal issues, that the Episcopal Church was hierarchical, and that the court could not interfere in Church decisions. She held too that the Dennis Canon would trump any local law and would be binding in and of itself under the hierarchical nature of the Church. While adding a few items for emphasis, she really added nothing substantial to what P had written.

In sum, P and H argued that this dispute was religious, that the Episcopal Church was hierarchical, that the Dennis Canon was in effect, and that the civic court would have to defer to the Church in all internal decisions including property. In short, the national Church held sovereignty over the local entity which was subordinate and subject to the authority of the larger church. Therefore, state laws on property and corporate rights were irrelevant in this case because the local entity could not operate independently of the national church.


The Local Church side:

KITTREDGE

In his 9 page opinion, K declared that the proper application of "neutral principles" demanded that the local entities should have control over the local properties. However, he said the Dennis Canon had indeed created a trust, but only because the parishes had acceded to it: The local churches' accession to the 1979 Dennis Canon was sufficient to create a trust in favor of the national church.

K went on that the Dennis Canon was not irrevocable because it was in a church document that was inherently amendable. In other words, it was not permanent because the Church could change it. If the Church could revoke it, local parishes could too; and this they did as they ended accession to the TEC canons in 2010. Thus, at the time of the schism in 2012, all of the seceding parishes kept their properties in sole ownership because they had revoked the Dennis Canon two years earlier. To K, the Dennis Canon had no power in and of itself. It was only the accession of the local parishes that made it effective; and since it was not irrevocable, it was their withdrawal of accession that made it ineffective. 

K concluded that TEC and its diocese had no right to the properties or to the pre-schism diocesan rights. All of these matters had been determined under local property and corporate laws.

K treated the diocese and the parishes "neutrally," that is, as if they were independent equals of the national church. Following this, he found the local entities had operated entirely legally under state laws. However, he did not go as far in localism as did Toal.

TOAL

Toal, not surprisingly, contributed the longest and most detailed opinion at 30 pages (39% of the whole decision). 

This was essentially an elaborate defense of the Court's 2009 All Saints decision which she had written. As K, she insisted that neutral principles meant the local entities had to be treated equally with the national Church; and she too agreed with the circuit court findings (except that the federal court would have to determine the trademark/copyright issue). 

T also followed the local property and corporate laws but varied from K in her view of the Dennis Canon. In contrast to K, T argued that the Canon never went into effect in SC because the title holders had never properly set up trusts for the church and diocese. In her view, simply acceding to the Church's Constitution and Canons was not enough because it was not following the letter of the law. Only the deed holder could set up a trust. 

Moreover, in T's view, the diocese had acted legally in changing its corporate charters and Lawrence had acted lawfully with the quit claim deeds since he was the Episcopal bishop.

T had the most extreme view of local rights, even more so than K. To her, there was no question that the diocese and parishes had acted legally and were the owners of the properties and rights of the old diocese (except those issues of national trademark properly in the federal court). She viewed the dioceses as virtually a a sovereign and self-governing unit, even if it were in a national church.

In sum, K and T argued that neutral principles demanded that the court settle the issues at hand: property ownership and legal rights of the old diocese. They strictly applied local laws on property and corporations to the questions at hand and found entirely for the local entities. Their only significant difference was in their understandings of the Dennis Canon. K believed it went into effect under the parishes accession to the TEC Constitution and Canons. T insisted it never went into effect because it had not been enacted in the proper documents by the deed holders ( the parishes). Both agreed, however, that the Dennis Canon had no effect in the state at the time of the schism and therefore there was no question that the parishes owned their own properties outright. K and T felt so strongly about this that both ended their essays with remarks against P and H that could fairly be described as bitter and sarcastic. This was something that I have never seen in a supreme court decision.

There was a deep, hostile divide between the national and local factions. If any compromise were possible, it was not apparent.

BEATTY

Beatty was in neither of the equal factions. He turned out to be the deciding vote in an apparent attempt to make a compromise between the two sides. He gave the shortest opinion, at just 3 pages, but these were the pages that made all the difference.

B tried to placate both sides. To K and T, he agreed with neutral principles and said the Dennis Canon was not sufficient to impose a trust in and of itself: The Dennis Canon had no effect until acceded to in writing by the individual parishes. For P and H, he agreed that 29 of the 36 parishes in the lawsuit had indeed given written agreement to set up a trust: their express accession to the Dennis Canon was sufficient to create an irrevocable trust. Then, he went on that 7 of the 36 had never given accession and therefore had never set up a trust. These 7, he said, must be free to have unqualified ownership of their properties. In other words, 29 parishes would return to trust control of TEC/ECSC and 7 would not. This was Beatty's compromise.

On the Dennis Canon, Pleicones and Hearn said it went to effect automatically under the umbrella of the hierarchical church and remained permanent. Toal, Kittredge and Beatty all rejected this but wound up having different views. T said it never went into effect in SC. K and B both said it did go into effect as part of the parishes' accession to the Constitution and Canons. Then, K and B parted ways. K said the trust was inherently revocable; and the parishes did this in 2010. B held the trust created by the accession was not revocable; so, even if the parishes claimed they removed the Canon in 2010 they could not and did not. Thus, B concluded that the 29 that acceded to the Canon did in fact create a trust that was irrevocable. He joined P and H on this point giving the overall decision to the Church side.  

How did the Court reach a settlement?

No one can know for sure since the justices' deliberations are private and leak-proof. Here is my opinion of how this probably happened:

The split occurred right away. Everyone knew that Hearn would side with TEC but P was a surprise. As it turned out he was by far the bigger advocate for the Episcopal Church and H simply echoed him, and not as well. 

T was resolved to protect and defend her signature achievement, the All Saints decision of 2009. Years from now, this will be her legacy. She fiercely defended it to the end. She has always been known as a formidable and "aggressive" contender. The Aug. 2, 2017 decision is probably her last; and she wanted to go out on a strong note. K agreed that local rights had to be protected under local laws, even if he swayed a bit to allow the Dennis Canon to come in under a general "accession." 

Month after month went by as the two sides dug in their heels and wrote, and rewrote lengthy and heavy treatises defending their positions. Neither side would budge.

Meanwhile, Beatty became Chief Justice (Feb. 1, 2017). He felt a responsibility to bring some closure. He knew this had to come to some kind of end. If it went on indefinitely, the reputation and standing of the state supreme court would suffer. The court had to go on; the court had to maintain its reputation. It seems to me that B consciously worked to find a compromise. However, the best he could work out really gave the bulk to the national church side. 29 to 7 was hardly equal.

Perhaps this explains why K and T ended with their uncharacteristically bitter comments.

All of this is just speculation of course. I am left wondering too why P was so contentious in his views. As T, this was perhaps his last decision. It should be remembered that T and P had had a tussle over the chair of chief justice (although they always insisted they remained good friends). In 2014, P was up for promotion to the seat. At the last minute, T decided she wanted to get elected to another 10 year term although she could serve only one year of it because of the mandatory retirement age. She managed to get herself elected. P was left to run next year. He did and he won but he had only one year to serve as Chief because of age. After his one year, Beatty took his turn by election of the state assembly. I can only wonder what all this might have had to do with the sharp differences between their opinions of last week.

In spite of all the five different opinions, make no mistake that the majority has ruled. They said 29 parishes properties return to control of TEC/ECSC. How the court reached that decision should be a fascinating subject of study one day.

The SC Supreme Court decision of Aug. 2, 2017, is the first time that a state supreme court has ruled on the relationship between the Episcopal Church and one of its dioceses. This decision will have great weight around the nation for a long time to come. In essence the court handed a great victory to the Episcopal Church. It said the Church is hierarchical. That means that sovereignty rests in the national church. Dioceses are subordinate and dependent on the national Church. They are not independent, self-governing entities. 

One note of caution, however, for the Church. The SC court did not recognize the validity of the Dennis Canon in and of itself. No court in the U.S. has done so. Whether the Episcopal Church has the right to impose unilaterally a trust on local properties is still an issue to be resolved.

WHAT WAS THE CONNECTION BETWEEN THE HEARING OF SEPT. 23, 2015, AND THE WRITTEN DECISION OF AUGUST 2, 2017?

These two events were not at all the same. Comparing the transcripts of the two, one may be surprised at the differences. On Set. 23, 2015, no one could have predicted how this would turn out nearly two years later. 

Toal dominated the entire hearing. She spoke more often and longer than anyone. Her famous "controlled aggression" showed as she raked DSC lawyer Alan Runyan over the coals. She ridiculed the circuit court trial. She shredded Goodstein's decision. She snatched Runyan's All Saints defense from him. Judging from all this one might have assumed she was ready to declare for the Episcopal Church side. 

In retrospect, it seems to me that Toal was perhaps unhappy with Runyan for the over-the-top circuit court decision that messed up her neat little reiteration of her All Saints decision of 2009. It had gone way off topic. Now she was going to have to clean up the mess and work hard to get the court around to her view of local rights. In the end, she could not do it. Not one of the other four justices joined her in defending All Saints. In perhaps her last hurrah, Toal was left alone to defend what will remain perhaps her signature achievement. 

Hearn was next in speaking in the hearing. Of course, she promoted the interests of the national church. Her written opinion was no surprise. Pleicones spoke only a few times in the hearing and really said little of substance, or at least little to indicate his lean. He showed absolutely none of the thinking that would come out so vividly in his written opinion. Everyone assumed Hearn would lead the Church side, but this turned out to be wrong. It was Pleicones who led the charge for the Episcopal Church. No one could have guessed that on Sept. 23, 2015.

In the end, it was not Hearn or Toal who determined the outcome. It was the mild mannered, rather quiet Chief Justice Beatty who settled the whole decision. He made the compromise to bring the intolerable war to a merciful end. The Episcopal Church and its diocese really owe a huge debt of gratitude to Beatty. In a way he contributed as much if not more to their final victory than did Hearn, or even Pleicones. Every Episcopal Church in South Carolina should put up a picture of Chief Justice Beatty. They should remember that he easily could have joined K and T for the local entities and the Episcopal Church would have gone down to a crushing defeat. In the hearing, he had said hardly a word. Sometimes those who say the least do the most.

The lawsuit in SC tested the wisdom of Solomon and the patience of a saint. We thought it would never end, even that it was perhaps unsolvable. It did end and it did reach a solution. The justices did the best they could. That is all we can ask of them. Now it is up to the good people on both sides of this tragedy to do the best they can to bring all of this to an end. It is most unlikely that the Court will agree to a rehearing and that SCOTUS will take the case. There is still the federal case but I think that will probably come down on the side of the Church too. Finally, at long last it will come to an end.    

MORE THOUGHTS 

ABOUT THE SC SUPREME COURT DECISION

If you are feeling "schism fatigue," you are not alone. I think we are all exhausted. After all, the process of moving to schism started 35 years ago [!]. The schism itself occurred almost 5 years ago. The two sides have been at war in the courts for 4 and a half years. We waited on the state Supreme Court for 22 months. It is no wonder we are all emotionally spent. However, one should not get wiped out now. There is much more to come and it make take years for it to finally conclude. 

I continue to be amazed at the interest in what is going on. This blog has had 5,000 hits since the court decision of Aug. 2. I am trying my best to relate information to a hungry public.

What I want to do now is review where we are and where we are likely to go in the foreseeable future. ( I remind everyone that I am not a lawyer or a legal expert, just an ordinary layman. These are my own views.)

WHAT DID THE SC SUPREME COURT RULE?

First, understand that decisions of the South Carolina Supreme Court (SCSC) are by majority vote of the five justices.

The majority decision has the weight of law. It must be followed by all the courts in the state. The decisions must be enforced by the law enforcement officials of the state.

SCSC is the highest state court in SC. There is no appeal possible in the state. The only court above SCSC is the Supreme Court of the United States (SCOTUS).

The primary decisions of the SCSC on August 2 were:

---29 parishes are to return control of their properties to the Episcopal Church (TEC) and the Church diocese, called the Episcopal Church in South Carolina (ECSC).

---7 parishes may remain in sole control of their properties (St. Andrew's of Mt. Pleasant, in the ACNA Diocese of the Carolinas, and 6 in the independent Diocese of South Carolina (DSC).

---Camp St. Christopher belongs to the ECSC.

WHAT DOES THE DECISION MEAN?

---The 29 parish properties will return to the control of the Episcopal Church bishop, "Skip" Adams. The clergy and laity who remain on these properties and do not recognize the authority of Bp Adams would apparently be in violation of the law. Mark Lawrence will have no authority over these properties. Presumably Church control could be enforced by court order. What Bp Adams does about these local properties would be up to him and the Episcopal Church authorities per the Dennis Canon which holds that all parish property is held in trust for the Episcopal Church and the Episcopal Church diocese. 

---The 6 parishes that keep full control of their local properties would presumably continue as the DSC. Since none of these is in Charleston or its suburbs, DSC would have no property in this area. 

---The old Diocese of South Carolina lies divided into four pieces, All Saints of Pawleys Island, St. Andrew's of Mt. Pleasant (both in ACNA Diocese of the Carolinas), DSC (now a diocese of ACNA), and the Episcopal Church diocese.

---The court decision only applies to the property. People, of course, are free to choose their own religion. Those now occupying properties to be returned to TEC may choose to stay and return to TEC, or leave and create other communities in other quarters. What communicants do about that is entirely up to them.

WHAT IS LIKELY TO HAPPEN IN THE NEAR FUTURE?

Nothing will change in the immediate future.

The SCSC decision of Aug. 2 did not include specific directions for enactions.

DSC has until September 1, 2017, to file a petititon for a rehearing in the SCSC.  In my view, there is absolutely no chance the SCSC will grant a rehearing. Here's why:

A rehearing would be before the present Court. Since the original hearing of Sept. 23, 2015, two justices have retired, Toal and Pleicones. Both participated in the decision. Two new justices have taken the bench; both had nothing to do with the decision of Aug. 2. They would be starting from scratch.

Although Justice Pleicones wrote the lead opinion for the majority, it was Justice Beatty who finally settled the decision. 

The two sides (Pleicones & Hearn v. Kittredge & Toal) were deadlocked in a bitter confrontation. Beatty stepped in to make a compromise.

In the course of deliberations, Beatty became Chief Justice of SCSC. The case seemed impossible to end with the two sides intractable. To bring the case to an end (remember this took 22 months) and to preserve the institutional integrity of SCSC (a decision had to be rendered), Beatty arose to give something to both sides. To K & T, he agreed with the local view that a national institution cannot unilaterally impose a trust on a local property owner without the written agreement of the title holder. He said the Dennis Canon was a trust, but not one that could be applied in SC in and of itself. To P & H, he agreed that 29 of the 36 parishes in question had done just that, had created in writing trust interests for TEC and its diocese. Therefore, Beatty decided that these 29 had to return to TEC/ECSC control. It was Chief Justice Beatty who really decided the outcome of this case.

Since Chief Justice Beatty was the essential core of the ruling, any rehearing would directly confront his decisions. It is unimaginable that two new justices of SCSC, who had nothing to do with the ruling, would blatantly defy their chief and discard his words. If they did, this would poison the court's working relationship forever.

Moreover, it is beyond belief that the two new justices would want to start from scratch and relive this extremely difficult and complicated case. Remember they have dozens of other cases at hand. My prediction is that the new justices will avoid the Church case like the plague.

To get a rehearing before SCSC, the DSC lawyers would have to demonstrate errors in the Aug. 2 decision. Again, going against the decision will be going against the Chief Justice. How Runyan et al, tiptoe around this will be fascinating to watch.

Judges and justices are loath to revisit their own written opinions and almost never reverse their own judgments on their own. 

To me, it seems inconceivable that the present SCSC would reverse the Aug. 2 decision. To do that, K would have to convince both of the new justices to go along, something I think they are most unlikely to do.  

BEYOND SCSC

If SCSC affirms their Aug. 2 decision, which I think they will, what happens then? This would be the end of the matter as far as the state courts of SC are concerned. However, DSC lawyers could appeal the Aug. 2 decision to SCOTUS.

Runyan et al. would have 90 days in which to file an appeal with SCOTUS.

It is possible but not probable that SCOTUS would take the appeal. Here's why:

-SCOTUS takes only 1% of the cases appeal to it. So, chances of being accepted are tiny. 99% of appeals are rejected.

-SCOTUS, as the high court of the nation deals only with issues of national importance, and only with relatively few of those, usually the most urgent.

-SCOTUS shies away from local issues.

-DSC lawyers would have to show why the SCSC decision was in error. At present, DSC lawyers are arguing that the SCSC justices did not follow sufficiently the state laws on property and corporations. If they go to SCOTUS and present such arguments, they are likely to be dismissed. To my understanding, DSC lawyers are not arguing constitutional issues, only local law. 

WHAT ABOUT THE FEDERAL CASE?

In March of 2013, Bishop vonRosenberg entered a suit in the United States District Court, in Charleston, against Mark Lawrence, vonRosenberg v. Lawrence. He charged Ml to be in violation of the federal Lanham Act that protects trademark and copyright infringement. In essence, vonR asked the court to recognize him, and not ML, as the legal bishop of the Episcopal diocese of South Carolina. In other words, vonR asked the court to recognize the Church diocese as the legal heir of the pre-schism diocese and entitled to all the rights and assets entailed therein.

After Judge Houck's death last month, the case moved to Judge Patrick Duffy. Recently, the case has been reassigned to Judge Margaret B. Seymour, senior judge in the U.S. District Court, in Columbia. Seymour is now in charge of the case.

It is most likely vonR (now Bp. Adams) will win this case. Here's why:

-The U.S. Court of Appeals, in Richmond, has twice ordered the District Court to adjudicate this case. It is inconceivable Seymour would ignore this.

-Houck had deferred to the state court. Seymour cannot defer since there is no more state case (or will not be after SCSC affirms its decision). The federal court will have to adjudicate this case.

-SCSC gave clear opinion in the direction of the federal court. It found ECSC to be the legal heir of the pre-schism diocese. SCSC also declared TEC to be hierarchical, that is, that the national Church has authority over the local dioceses. SCSC also said federal trademark law takes precedence over local, and therefore, the federal court would have to resolve issues of "marks," or names and titles.

-If Seymour agrees with SCSC that TEC is hierarchical, she will have to recognize vonR as the legal bishop of the Episcopal diocese and entitled to all that means.

-Federal courts have consistently sided with TEC in disputes of property.

If DSC fails in SCSC, fails to get SCOTUS to take the case, and loses in the U.S. District Court, It can appeal the District Court decision to the U.S. Court of Appeals, in Richmond. It seems to me most unlikely the appeals court would agree.

All of this means that litigation is likely to go on for a long time, perhaps several years. I know, at this point, no one wants to contemplate years more of this mess, but unfortunately, that is the reality.

Of course, one should recall that in 2015, TEC offered a compromise settlement with the schismatic diocese. The offer was to give the rebel parishes full control of their local properties in return for the rights and assets of the pre-schism diocese. The diocesan ruling clique immediately and furiously rejected this. I wonder if the offer might still be on the table.

WHAT DOES THE FUTURE HOLD FOR THE TWO DIOCESES?

At this point, one may reasonably conclude that the Episcopal Church and her diocese will regain the titles, rights, and assets of the pre-schism diocese as well as most of the local properties, including all of the Episcopal churches of Charleston and its outlying area as well as Camp St. Christopher. This means it will also regain the missions of the old diocese as well as the diocesan headquarters on Coming Street.

DSC may be reduced to 6 pre-schism parishes, a few misisons, and whatever congregations they can form outside the old properties.

Whatever, both sides have a great deal of difficult work ahead. There will be many hard choices along the way that have to be made. They cannot be avoided.

By all appearances, the road ahead is long and rocky. The greatest test is yet to come, that is, how to work out the best relationships between two former sets of friends. Everyone involved is going to have to reach deep into his or her religious beliefs and values and decide how they are to affect personal behavior near and far. Everyone is being put to the test. The world is watching. They will judge Christians on what they do and not what they say. Whatever happens, the people of faith now divided into unhappy camps must find some way to live together as the best Christians they can be.

EPISCOPAL CHURCH VINDICATED,

SCHISMATIC DIOCESE IN COLLAPSE

The storm has passed. It left a great deal of destruction in its wake, but it has moved on. The Episcopal Church and her diocese survived. The schismatic faction in South Carolina is now in disarray, confusion, and collapse. Yesterday's decision I believe was the turning point in the history of the schism. The fundamental issue of property has been settled---in favor of the national Church.

The dispute between the Church diocese and the independent diocese was primarily over two big issues: property and legal rights of the pre-schism diocese. Yesterday, the state supreme court settled the first issue and passed the second on to the United States District Court in Charleston for settlement.

The state supreme court overturned most of the circuit court decision of Judge Goodstein (Feb. 3, 2015). Only one justice, Kittredge, gave much recognition to Goodstein's decision.

The crux of yesterday's ruling was property. The court said 29 of the parishes that had claimed to break away from the Episcopal Church must return control of their properties to the Episcopal Church and the Church diocese (Episcopal Church in South Carolina). The court also said that 7 of the breakaway parishes could keep their properties trust-free. 

Some of the lesser agreements in yesterday's decision:

---The Episcopal Church diocese is the rightful owner of Camp. St. Christopher (Pleicones, Hearn, Beatty).

---Neutral principles may settle this case (Beatty, Kittredge, Toal).

---The Episcopal Church diocese is the legal heir of the pre-schism Diocese of South Carolina (Pleicones, Hearn, Beatty).

---The Dennis Canon created a trust in favor of the Episcopal Church (Pleicones, Hearn, Beatty, Kittredge).

---The United States District Court (federal court) must decide issues of copyright (e.g. which of the two dioceses is legally entitled to the rights of the pre-schism diocese) 

WHAT HAPPENS NEXT?

---DSC lawyers will probably petition the state supreme court for a rehearing. In my opinion, there is zero chance of a rehearing. All one has to do is read the five opinions of yesterday to know these justices will never want to touch this case again.

---Failing a rehearing, the DSC lawyers could appeal to the United States Supreme Court. On one hand, the Court has routinely rejected appeals against the Episcopal Church. On the other hand, the Court may want to clarify the problematical differences between deference to religious institutions and application of neutral principles. These two have produced a great deal of confusion among lower courts.

---The Episcopal Church and its Episcopal Church in South Carolina will have to decide how they will approach the return of their trust interests over the 29 parishes. I doubt that anything will happen along this line until after the federal court makes a ruling.

---The federal court (the United States District Court, in Charleston) is proceeding with the case of vonRosenberg v. Lawrence. In essence, vonR (or now, Adams) is asking the court to recognize him and not ML as the legal and legitimate bishop of the Episcopal Diocese. Judge Patrick Duffy is presiding. My guess is that the court will rule in favor of vonR. Here is why:

-Duffy must make a decision. He cannot defer to state court as Hocuk did because there is no more state court adjudication. It ended with yesterday's ruling.

-The U.S. Court of Appeals, in Richmond, has twice ordered the District Court judge to adjudicate the case under the Colorado River standard that requires adjudication of cases involving federal law except in rare circumstances.

-The state supreme court clearly deferred to the federal court to settle the dispute over copyright. What this really means is that the federal court must decide which of the two bishops is legally entitled to the pre-schism diocese, or, in other words, which of the two dioceses is the legal and legitimate heir of the pre-schism Episcopal Diocese of South Carolina.

-At the same time, the state supreme court, by majority, declared that the Episcopal Church diocese is the heir of the pre-schism diocese (and entitled to diocesan property such as Camp St. Christopher).

-Judge Duffy has already ruled three times in favor of the Episcopal Church diocese (in the matter of the Church Insurance Company).

My conclusion is that Judge Duffy is likely to rule in favor of the Episcopal Church diocese. If so, that will settle both of the basic problems, property and legal rights; and the Episcopal Church will prevail.

So, I sense that the state supreme court decision was the landmark turn in the long and terrible history of the schism in South Carolina. There is still a great deal to be settled, but the final field is beginning to emerge in view.

As I said yesterday, this is a sad and somber time. It is not a moment of rejoicing. A great and founding diocese of the Episcopal Church lies broken and bleeding. The destruction has been done and much of that cannot be undone. Nevertheless, I believe we all have to work to bring healing, reconciliation and peace where it is really needed.

I will return soon with more reflections on the state supreme court ruling. There have been 3,500 hits on this blog since the decision was released.

BOOK COVER

Click on the image to get a close-up.

Yesterday right after the state supreme court released its decision, I emailed my editor to ask if I could still make a few small revisions to the text. I caught him just in time, as he was preparing to send it to the printer. Thankfully, I was able to revise several sentences and paragraphs to reflect the new decision and brings some closure to the story.

Here is the cover. It includes info about the book and four (very kind) endorsements. I am pleased with the illustration, but I must say I did not choose it. My first choice was the Sheldon church ruins. Then, I thought too depressing. Next, I wanted the two cathedrals in Charleston. Then, I thought too confrontational. After, I though nature scene: Angel Oak on Johns Island (my favorite tree) to symbolize age and endurance; generic cypress swamp, same; marshes, vast, eternal and serene, as the power of God. My editor chose the last without consulting me. As it turned out, I could not have chosen a better picture.

I am told the book is to be in hand by the end of the month, first as a large and thick paperback (550 pages).

I will keep readers posted on when pre-orders can be made on the Wipf and Stock website.

After I saw a lot of historical misinformation yesterday, I think we need this book now more than ever.  

For those of you who have been kind enough to ask about my health, I can tell you I am well. I finished my radiation treatments a few weeks ago; and all signs are good now. It was a bit of a struggle to finish the book while I was having treatments, but I managed well with the support and help of many good people. I thank you all for your thoughts and prayers.

BREAKING NEWS!!!

SC SUPREME COURT RENDERS DECISION

!

The South Carolina Supreme Court has just issued its decision on the Church case. See it at

www.sccourts.org/opinions/HTMLFiles/SC/27731.pdf

The decision is split.

I will return momentarily with my summary and analysis.

My First Response:

Upon my first scan, the decision is split and mixed. Here is the main point I see at cursory glance:

The Episcopal Church regains the 28 local churches that overtly affirmed the Dennis Canon.

The 7 other local churches that did not affirm Dennis are allowed to keep their properties. The 7 are:

Christ the King, Pawleys Island

St. Matthew's, Darlington

St. Andrew's Land Trust, Mt. Pleasant

St. Andrew's, Mt. Pleasant

St. Paul's, Conway

Prince George Winyah, Georgetown

St. John's, Florence

St. Matthias, Summerton

This means that all the great churches as St. Philip's, St. Michael's, St. Helena's, Church of the Cross, Holy Cross etc. are subject to the Dennis Canon and therefore under the authority of the Episcopal Church and the Episcopal Church diocese of South Carolina. St. Andrew's of Mt. Pleasant is now part of another diocese (ACNA Diocese of the Carolinas). This would leave 6 local churches in the breakaway diocese.

I will return soon with more thoughts on the decision.

My Second Response.

OVERALL VICTORY FOR THE EPISCOPAL CHURCH AND THE EPISCOPAL CHURCH IN SOUTH CAROLINA.

Here is my understanding of the decision now. I reserve the right to change this as I reread the document.

---The Court split 3 (Pleicones, Hearn, Beatty)-2 (Kittredge, Toal) to enforce the Dennis Canon in the 28 local parishes that had explicitly adopted the Canon. This would mean the Episcopal Church and Church diocese are indeed entitled to legal trust power over these local parishes. In other words, the quit claim deeds Lawrence issued are ineffective.

---The Court split 3 (Beatty, Kittredge, Toal)-2 (Pleicones, Hearn) to say that the 7 local parishes that had not explicitly adopted the Dennis Canon can keep full title to their local properties.

---The 3 (Beatty, Kittredge, Toal)-2 (Pleicones, Hearn) majority said that the Dennis Canon alone could not establish a trust interest for the Episcopal Church and Church diocese. In order for the Canon to have legal effectiveness, the local parish would have to give explicit recognition to the Canon.

---The majority said that the question of control of local diocesan rights such as titles must be resolved by the United States Court (Judge Duffy is now presiding over the federal case in which Bishop vonRosenberg is suing Mark Lawrence for rights of the Episcopal bishop of South Carolina).

---The 3-2 majority declared that the Church diocese is the rightful heir of the pre-schism Episcopal Diocese of South Carolina (but the U.S. Court must settle the issues there).

Two big wins for TEC and TECSC:  1-return trust control over 28 local churches that had voted to leave TEC.  2-state court (apparently unanimously) deferred to the federal court the decision of the legal status of the diocese. This gives the advantage to TEC and ECSC as federal courts typically lean to the national institution.

On the whole this is a major but not total victory for the Episcopal Church and her diocese and a major defeat for the independent diocese.

Judge Duffy's ruling, in the federal court, should end the litigation in South Carolina. (The state supreme court decision can be appealed to the U.S. Supreme Court and Duffy's decision could be appealed to the U.S. Court of Appeals in Richmond.) If Duffy rules in favor of the Church, the Episcopal Church and its diocese would resume the rights, properties and assets of the pre-schism diocese. However, the independent diocese could still continue in the 7 parishes that have been granted their local properties by the state supreme court. If Duffy rules in favor of Lawrence, presumably the breakaways would keep possession of the rights, properties and assets of the old diocese as they have now. However, they would hold just the 7 local parishes that have been allowed to keep their local properties.

There is a great irony here. In June of 2015, the Episcopal Church offered an out-of-court settlement to grant all the 35 local parishes in question full rights to their properties and independence. The diocesan office immediately and furiously announced a rejection. Thus, the 28 local parishes that have now lost control of their property could have had full control over the buildings, lands, and assets. 

I will return with more thoughts on this monumental event.

My Third Response.

What does today's decision mean for the schism?

(and what does it mean for my history of the schism that I just recently turned in to be published? Wouldn't you know the court would rule right after I turned in the manuscript? I have sent an urgent message to my editor asking if it is still possible to make at least a small addition to reflect the decision.) Update-the editor just told me I can make a small addition, just in the nick of time before printing.

---This is a major victory for the Episcopal Church. The court majority ruled that the Church is hierarchical. 

---This is the first ruling by a state supreme court in the dispute between the Episcopal Church and the five dioceses that purported to leave the Church. The essence of the decision is to recognize the sovereignty of the Church over the dioceses. This will give great weight in the law to the Church side.

---The decision did not uphold the Dennis Canon in and of itself. The majority said that the Canon was effective in the 28 local parishes only because those parishes had given explicit recognition to the Canon. In other words, in South Carolina, the Episcopal Church cannot unilaterally establish a trust without the permission and action of the local property holder. To my knowledge, no court in the U.S. has recognized the effectiveness of the Dennis Canon in and of itself.

---Today's decision does not return anything to anybody. It was a decision in principle, not in specifics. Presumably, the Church diocese may have to get court orders to enact the decision in each parish. 

---The state court deferred to the federal court to settle the question of which of the two dioceses is the legitimate one, that is, entitled to the rights, titles, symbols, and assets of the pre-schism diocese. However, the majority today made it plain they consider the TEC diocese to be the legal one. This is bad news for the breakaways.

---The state supreme court surprised me in some ways. As it turned out, Justice Pleicones took the lead for the Church side and made as powerful a case for the Church as imaginable. Justice Hearn really echoed, and not as well, Pleicones, for the Episcopal Church. On the opposite side, the strongest position was made by Justice Kittredge who was completely in favor of the breakaways. He made a stronger presentation even than Justice Toal who also favored the locals. Justice Beatty turned out to be the "swing" vote between the two resolute and opposite blocks. He is the one who moved the balance over to the Church side by deciding that the local parishes that had affirmed the Dennis Canon were subject to it while the eight that had not approved it were not subject to it. It was his vote that decided the case. 

---In my view, this is the turning point of the history of the schism. The Episcopal Church has won. The breakaways have lost. All odds are the federal court in Charleston will affirm the state supreme court position. 

I should caution all, however, that this is not a moment of rejoicing. Quite the opposite. This is an appropriate time to grieve over the destruction and loss of a once great diocese. The grand old Episcopal Diocese of South Carolina, a founding member of the Episcopal Church, lies shattered, broken by the willful acts of its own misguided leadership. The largest part, the independent diocese of Mark Lawrence, has just suffered a major defeat, and in a lawsuit that it itself had initiated. There is division, resentment, hurt, and loss all around. This is not likely to go away anytime soon, but today's decision may well be the beginning of a healing, a binding up of the wounds, that will restore at least some of the life of the old diocese. 

I believe we have reached a turning point in a long road. Let's believe that road leads home.

I will return with more reflections on this landmark day in church history.

My Fourth Response.

Having reviewed the parishes included in the lawsuit, I have found 29 that the state supreme court has determined to be subject to the Dennis Canon. That means trust interest of the Episcopal Church and the Episcopal Church in South Carolina has returned to the properties of these parishes:

All Saints,  Florence

Christ/St. Paul's,  Yonges Island

Church of the Cross,  Bluffton

Church of the Holy Comforter,  Sumter

Church of the Redeemer,  Orangeburg

Holy Trinity,  Charleston

St. Luke's,  Hilton Head

St. Matthew's,  Fort Motte

St. Bartholomew's,  Hartsville

St. David's,  Cheraw

St. James, Charleston (James Island)

St. Paul's,  Bennettsville

Cathedral of St. Luke and St. Paul, Charleston

Church of Our Saviour, Johns Island

Church of the Epiphany,  Eutawville

Church of the Good Shepherd, Charleston (West Ashley)

Church of the Holy Cross,  Sullivans Island

Church of the Resurrection,  Surfside

St. Philip's,  Charleston

St. Michael's,  Charleston

St. Jude's,  Walterboro

St. Helena's, Beaufort

St. Paul's,  Summerville

Trinity Church,  Myrtle Beach

Trinity Church, Pinopolis

Trinity Church, Edisto Island

Christ Church,  Mt. Pleasant

St. John's,  Charleston (Johns Island)

Old St. Andrew's, Charleston (West Ashley)

I will return with more reflections.

FORTHCOMING:

A HISTORY OF THE EPISCOPAL CHURCH SCHISM IN SOUTH CAROLINA

Wipf and Stock Publishers have informed me that our work, A History of the Episcopal Church Schism in South Carolina, is to be published next month, August 2017. It should be in hand within about a month.

This book is the result of four and one half years research and writing. I examined 2,500 original and secondary sources, what I believe to be all of the publicly available evidence of the schism. I cited 900 of these items, as often as possible in the original words. There are 2,200 footnotes.

The book is 527 pages not counting the front matter, as table of contents and preface. The publisher now plans to print it as one (hefty) paperback volume. A hardback book will be issued a few weeks later. In time, it will also be released as an e-book.

My blog entry "Notes---June 30," provides the first pages of the chapters and the index. This gives one an idea of the scope and depth of the book. 

I am posting here the first four pages of the Preface. This should give one a better idea of the purpose, aim, and method of the book. Forgive the poor quality of these images, they were made on my smart phone:

  

Here are two of the readers' "endorsements" that will appear on the cover of the book:

"A thorough and balanced study of the events that led not only to the schism among Episcopalians in South Carolina, but in four other dioceses as well. There is something of interest for anyone interested in the history of American religion, the Episcopal Church, or contemporary reactions to the liberalism in mainstream denominations." Joan R. Gundersen, Professor Emerita of History, California State University San Marcos and Archivist, Episcopal Diocese of Pittsburgh.

"Dr. Caldwell's narrative of this critical moment in Episcopal Church history is fast-paced and compelling, a rare achievement in such a comprehensive effort. His description of the penultimate years building to the schism itself returned me inexorably to a time freighted with the paradoxes of humanity: a potent stew of truth and deception, grace and law, faith and fear, loyalty and betrayal, persistence and impatience, and above all, hope for reconciliation met face to face with determined---and planned---separation. I couldn't help thinking of David M. Potter's classic work, The Impending Crisis: 1848-1861, on the events, politics and personalities that led our nation to war over whether we would stay together or go our separate ways." The Rt. Rev. W. Andrew Waldo, The Episcopal Diocese of Upper South Carolina.

A soon as I have the information, I will post on this blog how this book may be ordered. One may always check the Wipf and Stock website. In time, it will be available there and on other sites, as Amazon. Of course, I will announce to all the moment the book is in hand. We are almost there.

                 JUDGE HOUCK DIES




Judge Charles Weston Houck died on July 19, 2017. He was the federal judge handling the Church case in Charleston. He was 84 years old.

Judge Houck voluntarily took the case. As a semi-retired senior judge he could have passed on it. Apparently he found the whole matter far more complicated and difficult than he had imagined. He once said with sad resignation that he was having trouble making heads or tails of it.

Houck handled two different aspects of adjudication and essentially passed on each. In one instance, the Episcopal Church side moved the state court proceeding to Houck's federal court in April of 2013. In June, Houck refused and remanded the case to the state circuit court.

The second instance was the larger one. In March of 2013, Bishop Charles vonRosenberg brought suit against Bishop Mark Lawrence claiming that ML was in violation of the federal Lanham Act that protects against trademark infringement. VonR said ML was falsely claiming to be the Episcopal bishop even though he had left TEC.

There are two principles that federal judges may follow in deferring to state courts. Brillhart/Wilton allows a wider discretion. Colorado River has a much narrower window. Under it, a federal judge may defer to state court on a matter of federal law only under rare and exceptional circumstances.

In August of 2013, Judge Houck cited Brillhart/Wilton as his guide in refusing to adjudicate and deferring to the ongoing proceedings in the state court. At the same time, Houck declared that ML had renounced the ordained ministry and the Episcopal Church was hierarchical.

The Church lawyers appealed Houck's decision to defer. The U.S. Court of Appeals ruled that Houck had used the wrong standard and should have followed Colorado River. They remanded to Houck.

Houck ruled a second time as the first. He deferred to the state court. A second time the Church lawyers appealed to the federal court of appeals that, once again, directed Houck to follow the narrow Colorado River principle. This was six months ago. Houck did not respond to the second direvtive.

Presumably another judge in the U. S. District Court in Charleston has been or soon will be assigned to the case. I would imagine this will drag out matters even more.

Obviously the courts are finding the Church dispute far more difficult to resolve than they had thought. Judge Houck essentially threw up his hands in exasperation and kicked it all down to the state courts. The circuit court decision was so over-the-top in favor of the secessiomists that the state supreme court could hardly restrain their ridicule. Now apparently that court has slogged to a halt. After 21 months of waiting we have nothing at all from the five high justices of Columbia. Unfortunately for them, they cannot punt the ball as Houck did. They are obliged to give us a decision.