EPISCOPAL CHURCH PRESENTS ITS CASE TO THE SOUTH CAROLINA SUPREME COURT

Lawyers for the Episcopal Church and its diocese of South Carolina presented their written arguments to the South Carolina Supreme Court on November 12, 2020. The Church side is appealing Circuit Court Judge Edgar Dickson's Order of June 19, 2020. In August, the SCSC agreed to hear the appeal.

A brief recap of this case:

1-On Feb. 5, 2015, circuit court judge Diane Goodstein issued an order denying the interest of the Episcopal Church in the local and diocesan properties of the old (pre-schism) diocese. The order found all in favor of the new (breakaway) diocese. 

2-On August 2, 2017, the SCSC issued a majority decision essentially reversing Goodstein and recognizing the Episcopal Church ownership of 28 (really 29) local parishes and the diocesan Camp, St. Christopher.

3-On Nov. 19, 2017, the SCSC sent its decision back down to the court of origin, the circuit court at Dorchester County, with a Remittitur to enforce the decision. (The SCSC denied a rehearing; the U.S. Supreme Court denied an appeal.)

4- On June 19, 2020, Judge Edgar Dickson, of the circuit court, issued an Order reversing the SCSC decision. He ruled that the Episcopal Church had no interest in the local properties, thus returning essentially to the Goodstein decision of 2015.

5-The Episcopal Church side appealed Dickson's Order to the SCSC where the case is now. The Brief of 12 November is the written argument in the appeal.

WHAT DOES THE EPISCOPAL CHURCH WANT THE SCSC TO DO NOW?

The Church side is asking the SCSC to overturn Dickson's Order of June 19, 2020 and to issue instructions to the circuit court to enact the SCSC decision of Aug. 2, 2017:

Appellants [TEC] request the Court vacate the Dickson Order and remand with instructions for the Circuit Court to take actions consistent with the Supreme Court Ruling that issued a declaration of rights in Appellants' favor, including granting the specific relied requested in Appellants' Petition for Execution and Petition for Accounting (p. 34).

If the SCSC agrees with TEC's request, the Episcopal Diocese of South Carolina will regain possession of the 29 parishes in question and the Camp.

WHAT ARGUMENTS DID THE CHURCH SIDE PRESENT IN ITS BRIEF?

Here are the main points that I found in the brief:

---Dickson's Order sought to overturn the SCSC decision.

---Dickson's Order sought to reinstate the Goodstein Order (in place of the SCSC decision).

---The majority of the justices of the SCSC voted to reverse Goodstein and to recognize TEC ownership of 29 of the 36 parishes in question as well as Camp St. Christopher.

---The SCSC decision is the "law of the case." The law is not open to reinterpretation. Yet, Judge Dickson followed the opinion of the dissenting justices that was not the law of the case.

---Dickson's Order sought to nullify the SCSC decision:

Rather than following and enforcing the final judgment, the Circuit Court instead nullified this Court's ruling (p. 21).

---The circuit court (Dickson) did not have the authority to "clarify" (reinterpret) a SCSC decision, only to enforce it:

When this Court remitted the judgment, the Circuit Court obtained jurisdiction and authority only to enforce the judgment, not to clarify or to rehear it (p. 20).

The Court remitted this case to the Circuit Court...It did not remand the case with instructions. On remittitur, the "Circuit Court acquires jurisdiction to enforce the judgment and take any action consistent with the Supreme Court ruling (p. 22).

---The circuit court declared it had the right to discern the "intent" of the SCSC justices in disregard of the final decisions. In fact, supreme court decisions are always recognized by the result, not the intent. It is the vote that counts, not the reasoning that led to the vote. The process of making a decision is irrelevant to the force of the decision. The circuit court erred in following intent rather than result.

---The circuit court had no authority to reverse the SCSC decision on the properties. In the SCSC, four of the five justices ruled that the 29 parishes had acceded to the Dennis Canon. Yet, Dickson directly contradicted the court declaring that the 29 parishes had not acceded to the Dennis Canon. Dickson had no right to overrule a majority factual decision of the state supreme court. It was this error that led to Dickson's rejection of the SCSC's decision on the local properties. 

     If Dickson's Order is left to stand, it will create a dangerous precedent in which lower courts can overrule higher courts. This will strip the SCSC of its authority and lead to endless litigation without finality.

---"It is legally impossible" for the circuit court or the SCSC to reconsider this case. It has been settled as law:

The Supreme Court Ruling---the result of which was the majority's reversal of the Goodstein Order---is the law of the case and is not subject to further review by this Court (p. 20).

This brief sets out in detail all of the issues of this matter. It is compelling. This is an open and shut case of judicial authority. The SCSC has ruled and established the law on the ownership of the local properties. The circuit court had no right to reverse the higher court decision. Judge Dickson's Order apparently seeks to reinstate, essentially, Judge Goodstein's decision that awarded all to the disassociated diocese even though the state supreme court had explicitly reversed Goodstein's decision on the properties. I see two fundamental issues here. In one, the supreme court makes the law of the case. It is the highest court and its decisions are not subject to alteration. It is a question of law. In another, the structure of the judicial system is at stake. If lower courts are allowed to reverse higher court decisions, this will lead to anarchy in the entire court system. Litigation would go on forever and no finality would be possible. The issue is the integrity of the hierarchy of the state court system. 

Will the SCSC overturn the Dickson order and order enforcement of its Aug. 2, 2017 decision? On the face of it, this should be a no-brainer. Of course the highest court should defend itself and maintain the necessary integrity of the court system. Of course it should not allow a lowly circuit judge to reverse a decision of the supreme court. This is just common sense.

However, matters may not be quite that simple today. One should keep in mind the big picture of the church case. This is an important part of the culture war that has been going on in America for a half-century. From the start of the Great Democratic Revolution after the Second World War, the Episcopal Church enthusiastically engaged to promote the equality and inclusion of all people in church and in society. It championed blacks, women, homosexuals and others who had been discriminated against and excluded. However, the majorities in five dioceses voted to reject this democratic revolution and to leave the Church. South Carolina was the fifth and last. After the schism of 2012, the breakaway faction explicitly rejected equal rights for homosexual persons. It also denied to women offices of authority over men. Homophobia and sexism are parts of the backlash against the Great Democratic Revolution in which the Episcopal Church played, and still plays, a significant part. Thus, what is happening in the litigation now is very much a part of the culture war in America. 

As everyone knows, South Carolina is a highly conservative state. Just look at the election results. Political elements associated with the reactionary side of the culture war won across the board in South Carolina. On the presidential, senatorial, and representative levels, candidates associated with the democratic revolution side were soundly defeated by the voters of South Carolina. The majority of the people of this state have made their feelings about change known clearly.

So, what the SCSC will do now boils down to whether the justices see the Church case as an issue of law or the culture war. If they see it primarily as a matter of law, they will have to defend the SCSC decision and order the return of the properties to the Episcopal Church. On the other hand, if they see the Church fight primarily as a matter of culture, they may bend so far to conservatism that they find some construction to allow the Goodstein/Dickson position to prevail as a way of weakening the revolutionary forces of the culture war in the state of South Carolina.

As of now, we have no way to know which way the SCSC will move. We do know that two of the five justices who wrote the 2107 decision are no longer on the court, Pleicones and Toal. We also know that one of five justices, Hearn, has been recused from the case. Moreover, we know that two new justices have joined the court since the 2017 decision and one of them, Few, has been married in St. Philip's, of Charleston, after permission of the bishop of one side in this case. 

Thus, there are four active justices handling this case. It is possible the court would bring in an "acting justice" to become the fifth vote (I have no knowledge that they have done this). If it winds up that there are four votes, the Church side will need three or four votes to overturn Dickson. A tie vote, 2-2, would mean Dickson's Order would stand. If there is a fifth, an acting justice, the Church would still need three or more votes of the five to overturn Dickson.

So, what should be an open and shut case is not that simple. There is a good deal involved in how the SCSC will make its decision and not all of it is favorable to the Episcopal Church.

Still, after all is said, I cannot see a state supreme court rejecting one of its own final decisions and elevating lower judges to judicial supremacy. It just does not make common sense. I for one will be very surprised if the SCSC rules in favor of Goodstein/Dickson and the breakaway side.

For more information and commentary on last week's brief see the Episcopal diocese's press release (with a link to the brief) here and scepiscopalians' article here . One may also find this posting helpful, "Circuit Judge Orders Nullification of State Supreme Court Decision," of 19 June. Find it here . My usual disclaimer: I am not a lawyer or legal expert and what I offer here is only opinion.

NOTES,  9 NOVEMBER 2020

It is Monday, November 9, 2020, and time to check in on the crises we have been following for months now. Two must get our attention today, the pandemic and the political.

PANDEMIC. The fall spike is here. The charts of new cases and deaths are skyrocketing, just as the experts said they would. The pandemic is running unchecked in the world, especially in America. 

Our usual source, Worldometers, shows that there are now more than 50m cases of COVID-19 in the world. As of this morning it is listing 50,828,987 cases. This is up 8% in the last week, November 2-9. This compares with the 9% rise of the prior week (Oct. 26-Nov. 2). As for deaths in the world, there were 53,451 last week, a rising rate of 4%, the same as the earlier week. As of today, 1,263,602 people have died of the plague in the world.

The United States has passed the 10m mark of cases. The U.S. is reporting 10,288,480 cases, up 8% last week, up from the 7% of the earlier week. As for deaths, the U.S. is reporting 243,768, a rising rate of 3%, the same as the earlier week. This means app. 1,000 American are dying of covid every day. The U.S. continues to have the most cases and most deaths, in this pandemic, than any country in the world. There is no respite in sight.

The disease also continues to run rampant in South Carolina although last week saw a slight decline in rates. In the past week, SC reported 6,771 new cases for a total of 185,688. This was a rising rate of 4%, down slightly from the 5% of the earlier week. As for deaths in SC, the state reported 90 last week for a total of 4,036, a rising rate of 2%, a significant improvement over the 4% of the previous week. 

Alabama is also reporting a slight improvement in rates. There, the state reported 8,795 new cases for a total of 203,687, a rising rate of 5%, down a bit from the 6% of the earlier week. As for deaths, AL reported 111 last week for a total of 3,084, a rate of 4%, the same as the earlier week.

In Charleston County, SC, the pandemic is spreading at about the same rate. It reported 473 new cases last week for a total of 17,953, a climbing rate of 3%, the same as the earlier week. As for deaths in the county, there were 6 last week for a total of 285. This is a rising rate of 2%, up slightly from the 1% of the previous week.

Bottom line, the pandemic is in its third, and greatest (so far) phase of expansion. New cases and deaths are increasingly at alarming rates. This is on track to worsen as winter sets in.

POLITICAL CRISIS. I have nothing new to say today on this subject. I have written about the election in several recent blog postings so I will skip it for now. Once I have had a chance to digest the news and reflect a bit, I will return with comments on the political crisis in America.

Autumn is a glorious season, particularly in areas where deciduous trees proliferate. I for one am getting out to enjoy the beauty of the season.

Take a ride down a country road and soak up the glory of the season. This road is in Calhoun County, Alabama, which is in the southern foothills of the Appalachian mountain chain.

My garden is an eclectic mix of tropical and non-tropical plants. Since we have not had a killing frost yet, these banana trees contrast nicely with the brilliant red of this maple tree.

Some of the camellias in my garden are in full bloom. This is Winter's Fire Ice Angels, an early and prolific flowering camellia japonica.

Finally, I suggest we all set aside the political issues for a moment and remember we are all one humanity. We were all called for the living of this hour. We have other issues to address, life and death, to be precise. May we all find the strength and courage to press on even in the face of a terrible pandemic. Peace.

BIDEN WINS, DECENCY WINS

Saturday, 10:35 a.m. The news networks have just declared Joe Biden the winner of the 2020 election for president. This is an historic moment in so many ways. 

Someone asked me this morning how the history books would look on this election. I said instantly, this was the election in which the American people awoke and chose decency over indecency. In other words, we listened to the better angels of our nature.

I think we the people made two big decisions last Tuesday. In one, we defended our democratic republic from a man who tried to be an unconstitutional autocrat. In the other, we rejected Trump's politics of personal destruction, a mixture of craziness, meanness and cruelty. We judged this to be unacceptably indecent. Both of these are great accomplishments and causes for great rejoicing.

Now comes the moment crying out for healing and reconciliation. The nation is badly and dangerously divided. Biden and all people of good will are now challenged to bring us together.

The Great Democratic Revolution has been vindicated and strengthened. The counter-revolution has suffered a serious defeat. It is still there but now with much less power to resist the tidal wave of history moving toward a more perfect union. This is a milestone marker for human rights.  

 

WINNER:  DEMOCRACY

6 November, 2020. 6:00 a.m. It is just a matter of time before the news outlets declare Biden the winner of the presidential election of 2020. As of this moment, there are four states to be determined, Arizona, Nevada, Pennsylvania, and Georgia. Biden is ahead in three and about to take the lead in the fourth (PA). It is all but certain that Biden will win a majority in the Electoral College and become the next president of the United States.

So, here is my take on what the election of 2020 means:

---The Great Democratic Revolution of the late 20th and early 21st centuries has prevailed over the challenge from the counter-revolution. The counter staged a fierce attack in the last four years but it is now clear that this attack was rejected by the American people.

---The American people arose in unprecedented numbers to defend democracy. Percentage wise, this election saw the largest turn out of voters in over a century. Biden is winning 4m votes more than Trump.

---The American people rejected the authoritarianism of Trump. 

---The faustian bargain between Trump and the Republican Party has collapsed. As it turns out, in retrospect, it was not very strong. In the past few days, Trump has railed out against democracy crying fraud and crime. Not a single Republican leader has agreed with him. The Republicans, seeing his defeat, have abandoned him. End of bargain.

---The coup d'état, or attempted coup, turned out to be insignificant. Trump and his aides have mounted numerous lawsuits to change the votes in their favor, but not a single suit has any chance of succeeding. They are all frivolous. As of this moment, it is clear that the courts will not determine the outcome of the election. This will not be a replay of 2000. There will be no coup.

---There was no "blue wave." In fact, the Republicans won a handful of seats from Dems in the House of Representatives (as Charleston). The Reps will keep a majority in the Senate. There was little change "down ballot" as in the state legislatures. This tells us the voters rejected Trump but not his allies, the Republican Party. We will now keep a two-party government.

---With a divided government (Dems=president and HR; Reps=Senate and SCOTUS), we can expect one of two paths, compromise or obstruction. In the 1980's and 1990's, the divided governments worked by compromise. In the last six years of Obama (2010-2016), the divided government turned into obstruction. Republicans blocked every important initiative of Obama and the Democrats. It remains to be seen whether the Republicans, now free of Trump's bullying and the faustian bargain, will turn to compromise or obstruction.

---One huge force demanding compromise is the common enemy of the hour, the coronavirus. It is forcing a unity on the nation. The first problem the new administration will confront is how to defeat, or mitigate, the pandemic.

A word to my family members and friends who voted for Trump and are now disappointed at the outcome of the election. Keep the big picture. We are the greatest democratic republic in the history of the world. We got this way by trusting each other to act in the best interest of the individual and of the common good. None of us is perfect. None of us has all the answers. We are at our best when we listen to each other, when we hear and value what others have to say. Democracy is not easy. It is the worst system of government ever invented except for all the rest. We are all in this together. Let us not allow fear of the other to poison the well.

Finally, as a student of history, I think we all need to go back to the big picture of the sweep of history in contemporary America. The soaring news of the hour is that The Great Democratic Revolution has prevailed over an upsurging challenge of anti-democratic reaction. This means America will go on evolving a more perfect union of human rights for all people in our highly diverse society. We just survived a very serious threat to the GDR in Trump. The important point is that the people stood up for democracy and rejected the reactionary threat to it. And, if one looks all around, one will see here and there how the GDR goes on in our daily lives. 

Just a couple of small examples of how democracy continues:  In one of the most conservative states in America, Alabama, local authorities have just approved a new charter school for LGBTQ students. It is to be a "safe space" for middle and high schoolers who are homosexual. Find an article about this here . In another example, in yet another of the most conservative places in America, Mississippi, voters approved 74%-26%, medicinal marijuana, even after most of the establishment of the state campaigned against it. The fact that the expansion of human rights is going on in the most conservative states in America is testament to the prevailing power of democracy in our lives. And, that is the big picture that we should take away from the election of 2020.

Democracy was the big winner of the election of 2020, and for that reason, I am celebrating today. Peace. 

 

NOTES,  4 NOVEMBER 2020

It is the morning after Election Day. Here are my observations and thoughts on where we stand now.

---There is no clear-cut winner in the presidential race. 

---Last night, President Trump declared victory, called for the end of vote counting and charged fraud on the other side.

---As of this moment, Biden has the easier chance of winning. Fox News now gives Biden 238 Electoral College votes. He is presently leading in Nevada (6), Wisconsin (10), and Michigan (16). If he wins these three, he would win a majority (270) in the Electoral College. 

---As of this moment, chances are the Republicans will retain a majority of seats in the Senate.

What to expect now? Some dozen states are too close to call. They will be announcing their votes in the next day or two. We will know then who is likely to win in the Electoral College.

We can also expect thousands of Republican lawyers to continue to challenge ballots in the close states in an effort to reduce the Democratic vote in these states. Trump has announced as his goal that the Supreme Court will determine the winner of the election. The court has a solid 6-3 conservative majority. He has placed three of the justices on the Court.

The Electoral College meets on 14 December when the electors cast their votes from the state capitols. This gives six and a half weeks for court challenges before then.

Thoughts on the significance of the election:

---America is deeply divided. The questions are, What are the divisions and what is causing the divisions?

---Public support for Trump and his allies has changed little in the past four years. Trump is losing the popular vote by about the same measure as he did four years ago. As of now, only one state has changed from one party to another (AZ from Rep. to Dem.).

---The counter-revolution is remarkably strong. In fact, it is almost as strong as the prevailing revolutionary movement. (The Great Democratic Revolution began after the Second World War. It transformed America along lines of justice, equality, and inclusion for blacks, women, the disabled, the old, the poor, and homosexuals. The counter-revolution was the backlash of elements that felt most threatened by the reforms: white working class men, white southerners, white evangelical Christians, and big money.)

---The pandemic failed to unite the American people enough to demand a change in the national leadership that had failed to protect the country from the deadly virus.

---The alliance between Trump and his allies is strong and resilient. The Republicans made a faustian bargain with Trump. They would support his authoritarianism; and he would roll back the hated democratic reforms (esp. abortion rights). This formed a two pronged attack on the American democratic republic, extra-constitutional presidential power and repeal of the resulting reforms of the GDR. The vote yesterday suggests nearly half the American people support the faustian bargain.

---If Trump wins reelection, the faustian bargain will fundamentally change the American democratic republic into an anti-democratic authoritarian regime supported by a minority of the people. Trump will have four years of unrestrained rule. 

---If Biden wins the election, and the Republicans keep a majority in the Senate, autocracy will be averted but the Republicans in the Senate, under the iron grip of McConnell, will block any new democratic reform. There will be stalemate such as in the last six years of President Obama's administration. The faustian bargain will be defeated but the counter-revolutionaries will have great power in the Senate as well as the federal courts which Republicans have packed with conservative (counter-revolutionary) judges/justices.

We are now moving into a difficult and dangerous period of American history. The counter-revolutionaries have already launched a coup d'état to overthrow the legal and legitimate election. The next six weeks will show how how far they are willing to go to make this coup. I expect we can expect anything. 

 

REFLECTIONS ON THE EVE

OF THE NATIONAL ELECTION

Today is Friday, October 30, 2020. We are now at the last weekend before Election Day in America, 3 November. I would like to share with you a summary of my thoughts on the state of our nation.

I have seen many elections come and go. I first voted in 1964, for Lyndon Johnson. I was thrilled and excited at all the to-do around that election as I have about every election since. A junior at Florida State University, I stood for hours in the student union awaiting the (late) arrival of Lady Bird and Lucy Johnson who were making a stop in Tallahassee on their famous train tour of the south. The choice that year was stark too. I saw Goldwater as hopelessly reactionary and Johnson as a fellow progressive southerner (the civil rights movement was in full swing). It was a no-brainer. I proudly dropped my absentee ballot in the slot at the post office to send it on its way to Pensacola. Florida wound up voting for Johnson although north Florida mostly went for Goldwater. I will approach voting on Tuesday with the same care and enthusiasm as I exhibited all those years ago. Voting in a democratic republic is a great honor and treasure. On this day, we all count the same.

Regular readers of this blog know my theory of contemporary America, so I will just summarize here. This is my take on where we are as a nation on the eve of the election of 2020:

This election is a clash between the two great movements in America in the last 60-70 years. The primary movement was, and still is, the Great Democratic Revolution. This brought a transforming measure of freedom, justice, and equality to blacks, women, the disabled, the old, homosexuals, and others. Notable reforms included such as Medicare expansion, anti-discrimination laws, Medicaid, housing assistance, food stamps, tuition support, expended health care coverage, and marriage equality. Along the way, overall the country prospered. In short, the late Twentieth and early Twenty-First Centuries saw a great democratization of American life. The Episcopal Church played an important role internally and externally in the GDR (this was the main point that attracted me to TEC in 1964).

The second great movement was the backlash against the GDR. It was a counter-revolution, or reaction against the dramatic democratic reforms. The people most frightened arose to oppose the social, cultural, and economic changes. These were mostly the white working class men, white southerners, white evangelical Christians, and big wealth.

From the 1950's to 1990, on the whole, the GDR prevailed, mainly because of a forced national unity in the Cold War. The differences between the two sides were kept down by the challenge of an external threat. After the Cold War ended in 1990, the internal divisions were left exposed; and ever since then the reactionaries have mounted a growing opposition to the GDR. This culminated in the Trump victory of 2016. 

Trump had the potential of raising the counter-revolution to victory over the GDR but he failed to do that primarily because of his own unique personality. In order to give the reactionaries what they wanted (as repeal of Roe v. Wade) he made a faustian bargain with them: reactionary roll backs in exchange for authoritarian (extra-constitutional) powers. This was the fatal mistake of the reactionaries because, unknown to everyone, the country would be confronted by a new unifying external threat that would wreak havoc and death on a grand scale. For the first time since 1990, most Americans would be forced into unity by the coronavirus in 2020. Trump proved to be alternately incompetent and malevolent in the face of this national crisis. The U.S. has had by far the most cases and deaths of the virus, in the world. In the course of this national disaster, the public mood turned against Trump. This doomed both Trump and his counter-revolutionary allies. The reactionaries, who lashed themselves to the mast of the Trump ship, are going down with the ship. All signs indicate Trump will be defeated for reelection along with at least some of his allies. If so, the GDR will prove to be the stronger of the two historical movements even though the federal courts are now packed with right-wing judges/justices who will continue the counter-revolution.

Even though polls are showing Trump losing the election, one should not jump to the conclusion that he will concede. In fact, Republican lawyers are out right now working by the hundreds to diminish the vote count in all sorts of voter suppression tactics. Unless there is an overwhelming landslide against Trump, we can expect major court fights over allowing votes in certain places. Since courts are already packed with counter-revolutionary judges and the Supreme Court is firmly under their control we could see the courts restrict enough votes to throw the outcome to Trump, as SCOTUS did in 2000. This would be the worst nightmare scenario. Civil war would result between the majoritarian GDR side and the minoritarian reactionary side. God only knows what would happen then. So, it is not the election that bothers me as much as the aftermath. A great deal can happen between Nov. 3 and the meeting of the Electoral College on December 14.

This is the most important election of our lifetimes. It will decide whether the country continues on its path of democratic revolution or swings to counter-revolution to undo the reforms of the GDR. This also means whether the country is governed by the majority or the minority. If the majority prevails, the democratic republic prevails. If the minority prevails, the democratic republic falls and is replaced by a fascist state ruled by force. What could be more serious in American history since the Civil War than this?

In view of the gravity of this moment in our national history, I suggest a couple of prayers from  The Book of Common Prayer.

Collect for an Election.

Almighty God, to whom we must account for all out powers and privileges: Guide the people of the United States in the election of officials and representatives; that, by faithful administration and wise laws, the rights of all may be protected and our nation be enabled to fulfill your purposes; through Jesus Christ our Lord. Amen.

Collect for our Country.

Almighty God, who hast given us this good land for our heritage: We humbly beseech thee that we may always prove ourselves a people mindful of they favor and glad to do thy will. Bless our land with honorable industry, sound learning, and pure manners. Save us from violence, discord, and confusion, from pride and arrogance, and from every evil way. Defend our liberties, and fashion into one united people the multitudes brought hither out of many kindreds and tongues. Endue with the spirit of wisdom those to whom in thy Name we entrust the authority of government that there may be justice and peace at home, and that, through observance of thy law, we may show forth thy praise among the nations of the earth. In the time of prosperity, fill our hearts with thankfulness, and in the day of trouble, suffer not our trust in thee to fail; all which we ask through Jesus Christ our Lord. Amen.

For 250 years the people of the United States have built a great democratic republic. It has not been easy. In fact, it has too often been violent and bloody. We have argued and fought fiercely over our disagreements, but in the end we stayed together as a nation because we knew we were one people, we believed we had a common destiny. Next week's election will be a test of that commitment. I believe we will pass the test because our values are deeply ingrained in our national consciousness. I do not believe the American people are ready to hand over our country to would-be dictators and anti-democratic radicals.

Remember, we are here for the living of this hour. Peace.

[P.S. The last Graham-Harrison debate will air tonight, Friday, Oct. 30 at 7 p.m. on public television. No race has encapsulated the current state of national politics as much as this one. Polls show Senator Graham and his Democratic challenger running even, something that would have been unimaginable a year ago.]     

FEDERAL APPEALS COURT GRANTS MOTION

TO STAY CASE

On October 27, 2020, the United States Court of Appeals, Fourth Circuit, in Richmond VA, issued an Order granting the Anglican Diocese of South Carolina's motion for a stay of their appeal to the Court pending a decision of the South Carolina Supreme Court. The Order said:

Upon consideration of submissions relative to appellants' motion to stay case, which the court construes as a motion for abeyance, the court grants the motion and places this case in abeyance pending a decision by the South Carolina Supreme Court...

This means that the Appeals Court will suspend action on the ADSC's appeal of Judge Gergel's order of September 19, 2019, until the SCSC rules on the Episcopal Diocese of South Carolina's appeal of Judge Dickson's order of June 19, 2020. The U.S. Appeals Court had scheduled a hearing on the church case for early December. Apparently, there will be no hearing until the SCSC rules, whenever that may be.

It is important to note that this order does nothing to change Gergel's decision itself. It is in effect. The ADSC asked both Gergel and the Court of Appeals for a stay of Gergel's Sept. 19, 2019 order but both denied the petitions. Thus, Gergel's order remains in force. In fact, he has backed up his Injunction against the ADSC twice. Gergel's order will remain in effect unless and until it is overturned by the U.S. Court of Appeals.

I found it curious that the Appeals Court order of Oct. 27 was not signed by a judge. It was signed only by one person, the Clerk of the Court. I have no idea what this means. Perhaps it is standard procedure, but I found it strange that no judge signed it.

As everyone knows, I am not a lawyer or legal expert, but this appeals court order makes no sense to me. The federal court dealt with ownership of the diocese, specifically in who owned the "marks" (trademark names, symbols, emblems etc.). Judge Gergel found they belonged entirely to the Episcopal Diocese of SC. The state court dealt with ownership of the local properties. The state supreme court left the issue of the marks to the federal court. The South Carolina Supreme Court ruled on Aug. 2, 2017 that the Episcopal Church owned the bulk of the local properties. Upon Remittitur, the circuit court judge reversed this and declared that the Episcopal Church had no interest in the local properties. It is the circuit judge's decision that the Episcopal side is now appealing to the SCSC. Thus, I see no reason why the federal court should wait for a decision of the SCSC. Perhaps a lawyer who knows more about all of this could shed some light on this strange turn of events from the federal appeals court.

 

FEDERAL JUDGE FINDS

ANGLICAN DIOCESE OF SC

IN CONTEMPT OF COURT

United States District Court Judge Richard Gergel today issued an "Order and Opinion" finding the Anglican Diocese of South Carolina in contempt of court for their use of the term "Protestant Episcopal Church in the Diocese of South Carolina":

The Court finds Defendants [ADSC] in civil contempt for their use of this mark [Protestant Episcopal Church in the Diocese of South Carolina].

The ADSC had used the term when they applied for a loan from the Paycheck Protection Program administered by the U.S. Small Business Administration earlier this year. The ADSC subsequently received a loan through PPP. One can only wonder how the SBA will respond to this once they are informed of the earlier Injunction against ADSC using this term and the finding of contempt of court for claiming it in an application for a PPP loan. Will the SBA demand return of the loan? Seems fair to me.

On a couple of other points, Judge Gergel allowed ADSC leeway. Since ADSC voluntarily corrected practically all of the 27 items the Church diocese had listed as violations of the Injunction, these were really moot. Too, he found that ADSC's use of the terms "2009 Convention" and "2008 Consecration" did not violate the Injunction. 

Most importantly, it seemed to me that Judge Gergel used today's decision to speak to both the U.S. Court of Appeals and the South Carolina Supreme Court, in support of the Episcopal Church positions. The ADSC is appealing Gergel's Sept. 19, 2019 decision to the U.S. Court of Appeals. It is also petitioning the appeals court for a stay pending a decision of the SCSC. Meanwhile, EDSC is appealing Judge Dickson's decision of June 19, 2020 to the SCSC. These will be crucially important decisions; and it seemed to me that Gergel went out of his way to address the issues involved in his statement today.

1---The Episcopal Church is hierarchical.

This case arises out of a schism in 2012 in the Historic Diocese, originally known as the "Protestant Episcopal Church in the State of South Carolina," in which certain members and parishes sought to dissociate from The Episcopal Church, a nationwide hierarchical church.

2---The SCSC decision held that the Episcopal Church owned most of the property in question.

The parties have litigated property issues related to the schism in the state courts of South Carolina, culminating in a 2017 decision in the South Carolina Supreme Court holding that The Episcopal Church owned most of the property in dispute and finding that twenty-eight of the Disassociated Parishes held real and personal property in trust for TEC.

3---The Anglican Diocese was formed after the schism of 2012.

Defendant Disassociated Diocese, headed by Defendant Right Reverend Mark Lawrence and was formed following the schism in 2012 to disassociate from TEC.

4---The Episcopal Church diocese of SC is the lawful heir of the historic diocese.

On September 19, 2019, this Court granted summary judgment in favor of TEC and TECSC, finding that TECSC is the lawful successor of the Historic Diocese.

Perhaps the most important point in Gergel's order of today was what seemed to me to be a thinly disguised statement to the U.S. Court of Appeals. On October 16, 2020, the ADSC filed with the appeals court a "Motion to Stay Case." They asked the court to set aside the appeal until the SCSC rules on EDSC's appeal of Dickson's order. One of the main arguments ADSC made in its motion was that the SCSC would decide ownership of the state marks:

What the S.C. Supreme Court held in its 2017 opinions matters in this case because its decision on corporate governance affects the ownership of the state-marks...

First, with that decision in hand, the Court [SCSC] can resolve the state-marks and prior-use issues with the final decision from South Carolina's court of last resort.

In today's order, Gergel bristled at the notion that the issue of the marks had not been settled and took ADSC to task for misinterpreting Judge Dickson's June 19, 2020, order:

While Defendants [ADSC] argue that [Dickson's June 19, 2020 Order] permits such usage [Protestant Episcopal Church in the Diocese of South Carolina], this decision does no such thing, stating in relevant part that "the Federal Court has exclusive authority to decide all issues relating to the trademarks, service marks, and intellectual property." ([Dickson's Order]noting that "[a]lmost uniformly, the Supreme Court determined that TEC and TECSC owned all service marks, trademarks, and intellectual property or deferred to the Federal courts on these issues" and reiterating that "the Federal Court has jurisdiction over matters related to the trademarks, intellectual property, and service marks issues")

It appears to me that Gergel is telling the U.S. Court of Appeals that ADSC has no substantial claim to a stay order on the grounds of the settlement of marks which Gergel has most emphatically ruled on THREE times (Injunction and two enforcements). With this, I fully expect the appeals court to deny ADSC's motion for a stay toute de suite. Moreover, I continue to believe the appeals court will reject the entire appeal. Gergel has been ingenious at making and protecting his decisions. It seems to me they are appeal proof.

All in all, Gergel's order of today is a major boost for the Episcopal Church side, partly in enforcing its identity as the only legal and legitimate heir of the historic diocese, but also in sending unmistakable messages to the state supreme court and the federal appeals court in favor of the Episcopal Church. This comes at a good time for the Church side.

Find the Diocese of South Carolina's press release about today's order here .

 

 

NOTES,   26 OCTOBER 2020

Welcome, blog reader, on Monday, October 26, 2020. It is time to return to the crises we have been tracking for months now. Two of these are intensifying. In the pandemic, we are seeing the third great wave of new infections, just as the experts predicted we would see in the fall. The numbers of new cases are at record levels in some places in America. In the political crisis, the national election day is just a week from tomorrow. Both sides are pulling out all the stops to win. 

THE PANDEMIC. All signs show increasing rates of infections and deaths, particularly in the United States. The coronavirus is clearly out of control with no indication of mitigation. A vaccine is still months away at the least. 

Our usual source, Worldometers, tells us that last week, October 19-26, there were 3,058,685 new cases in the world. This was a rising rate of 8%, up from the 7% of the earlier week. The rate of deaths in the world is also rising. Last week there were 40,597 reported covid deaths, a rate of 4%, up from the 3% of the previous week. More than one million people in the world have died of the plague (1,159,930). Clearly, this deadly pandemic is spreading although at uneven rates in different countries.

New case and deaths rates are also climbing in the United States. Last week, the U.S. reported 501,564 new cases for a total of 8,889,577. This is a rising rate of 6%, up from the 5% of the earlier week. As for deaths in the U.S., there were 5,778 reported last week, a rising rate of 3%, up from the 2% of the previous week. Clearly, the disease is spreading rapidly in America although this is uneven. In all, 230,510 Americans are reported to have died of COVID-19 (the real number is probably much higher).

South Carolina reported 6,688 new cases of COVID-19 last week for a total of 170,678. This is a increasing rate of 4%, the same as the preceding week. SC also reported 152 deaths last week, a 4% rise, up from the 3% of the earlier week. Again, clearly the pandemic is spreading apace in SC.

Alabama is now one of the hottest spots in the country for the spread of the virus. Last week, AL reported a whopping 11,729 cases, an alarming rate of 11%. The previous week, AL reported a 4% rise. One of the three "hottest" counties in AL now is my home county, Calhoun. Altogether, AL has had 184,355 infections and 2,866 deaths. Last week, the death rate was 3%, actually down from the 5% of the earlier week. Public health officials are sounding the alarm in AL but the governor seems indifferent, or at least refuses to take any new mitigation measures. 

Charleston County SC continues to see the pandemic spread apace. Last week, it reported 417 new cases for a total of 17,045. This is a rising rate of 3%, up from the 2% of the earlier week. In all, 275 people in the county have died of the disease.

In sum, the experts are telling us we are in the third wave of the pandemic and it is to be the worst yet (the first was in April, the second in July). We can expect a hastening pace of spread of infections and mortality in the next few months. The worst is yet to come. Unfortunately, our political authorities in the U.S. are mostly ignoring all the warning signs of this public health emergency.

 POLITICAL CRISIS. Election day is eight days off, Tuesday, November 3, 2020. Of course, nearly 60m voters have already voted, so we have an election season rather than a day.

All signs indicate that Joe Biden will win the popular vote and, in all probability, the Electoral College. To be sure, many Democrats are hesitant to say so because of the bitter disappointment in 2016 when everyone, even Donald Trump, expected Hillary Clinton to win. Dems are still spooked about making predictions.

No one can tell yet whether this will be close or a landslide. Many states are showing neck-and-neck races for president. Also, some states are showing toss ups for senator, most famously South Carolina. The race there is too close to call in the polls but some surveys are showing the Democrat, Harrison, running ahead of the incumbent Republican Senator, Graham. Georgia, Alabama, and Mississippi, all usually red states are all having unexpectedly close races between the Dem and Rep candidates for the Senate. Overall, the bookies are betting the Democrats will win a majority of the seats in the Senate.

My greatest fear continues to be that the losing side will challenge the legal and legitimate election results in court on trumped up charges. If they can create enough doubt in the validity of the results in certain states, this could lead to the state legislatures and/or the courts deciding the outcome. In this scenario, the Republicans would have a good chance to snatch victory from the jaws of defeat, against the will of the people, as they did in the Election of 2000 when the Supreme Court ruled 5-4 for the losing candidate, W. This would be the worst nightmare outcome in 2020 that would throw the country into an upheaval the likes of which no one can imagine now. The subsequent widespread violence would allow the Trump administration to declare a national emergency and use armed power to suspend the Constitution and solidify minority rule in America. If so, fascism would be complete and the democratic republic of two and a half centuries would slip into history. It has become a cliché to say this, but it is none the less true: This is the most important election of any of our lifetimes. The future of our country depends on it.

Regular readers of this blog know my theory of contemporary America---revolution v. counter-revolution. In the last few years, Trump has brought the counter-revolutionary side to its greatest power ever, but his fatally flawed personality is bringing himself, and therefore his faustian allies, down. The key to his fall is the coronavirus. In the historical theory of Challenge and Response, America was challenged with a pandemic the likes of which had not been seen in a century. The country looked to the administration to respond (defend the country from deadly invasion) but there was no coherent, unified national response, indeed, quite the opposite. Trump failed to lead the country in a meaningful way as the majority of the people expected. The majority will now reject the president. In rejecting the president they will also be rejecting the president's train, the counter-revolutionaries. If Trump loses in a landslide, the counter-revolutionary reaction against the Great Democratic Revolution will also be diminished even though it will live on in the federal courts.

So, I see this election as a great showdown between the forces of those who want to continue the democratic reforms and those who oppose them. The reform movement has the force of history behind it. However, the counter movement has a leader who will do almost anything to keep from losing. He has already told pro-Trump, white racist, heavily armed thugs to "stand by." Unfortunately, that means we all have to stand by as our country heads into a political crisis of historic proportions. "In God We Trust" now takes on new meaning.

Although the election is a week from tomorrow, I have the unsettling feeling Election Day will be just the beginning of a great political crisis that will extend at least until December 14 when the electors of the Electoral College cast their votes for president. 

Today, it is more important than ever that we remember none of us chose any of this. Nevertheless, we are here for the living of this hour, as fearful and tragic as it is. May we all find the strength and courage to be our best selves whatever happens around us. Peace. 

BISHOP LOVE RESIGNS

The Rt. Rev. William Love, bishop of the Episcopal Diocese of Albany, has announced his resignation. The effective date is February 1, 2021. 

Find an article on this here .

Find another here .

Find the Episcopal News Service press release about this here .

Love also announced that his ban on Resolution B012 will remain in effect in the diocese until his last day. 

Love was unanimously found guilty of violating his ordination oaths of loyalty to the Episcopal Church by the Disciplinary Board for Bishops. The board was to meet tomorrow to decide on the appropriate punishment which could very well have removed him as a bishop.

As a student of the history of the schism in South Carolina, I am struck by the difference between the way Bishop Lawrence handled SC and the way Bishop Love handled Albany. It is night and day. And so, I for one greatly admire William Love for his honor and integrity. He was faithful to the principles that he fervently believed to be right and true but he also recognized his role in a larger community and respected the necessary unity of that institution. On the other hand, the schismatics in SC believed they, and not the Episcopal Church, were guided by the Holy Spirit. We have seen the bitter fruits of that belief.   

HOW ARE YOU DOING?

How are you doing, blog reader? Most of the hundreds of people who read this blog I do not know, but I am still concerned about their well-being. I would not be here otherwise. I hope and pray you and yours are well.

We are enduring crisis on crisis at this dark hour of our lives. We have discussed most of them here, but one we have not spent much time on is our mental health. Experts tell us, on top of everything else, we are in the midst of a mental health crisis. Suicides are up, particularly among young people. Alcoholism, drug abuse, spousal abuse, and child abuse are all up. Apparently these are all terrible side-effects of the pandemic. We must start by recognizing there is a problem. 

Our mental and emotional states are not usually things we want to talk about, and that is part of the problem. Too often we hide these issues only making them worse. A few years ago, a nephew of mine committed suicide. This was incredibly shocking because no one in the family knew he had had a problem. The people closest to him were wracked with guilt for a long time--- If we had only known we would have helped him.

Look around at the people you know who might need help the most. One group we often overlook is children and teenagers. Their lives have been disrupted too. If they stay at home to do remote learning, they are missing their friends, their old lives. Even if they go to school, they cannot interact with others the way they used to do. The isolation and social distancing are having bad emotional effects on our young people. Then there are the people who live alone, and the people who cannot get out at all, or out much. They are suffering too.

The point I am trying to make is that we have to take extra care these days to look after ourselves and our friends, family, neighbors, and acquaintances. These are extraordinary times that call for extraordinary measures.

Taking care of ourselves is an individual thing. Here  is a helpful article on methods for coping. We can all add our own ideas to this list. For church people, I would add enhancing Bible reading, prayer life, and reading reflections of bright minds (as N.T.Wright's book, God and the Pandemic).

I am fortunate to have a large botanical garden which I am enjoying especially in these cool days of autumn. Everyone should have some satisfying interest of his or her own in which to devote time and energy. It does not have to be elaborate. It could be just simply walking around your neighborhood.

Finally, we must be conscious of looking after others. If you have children and grandchildren, you might reach out to them more than usual, the same with people you know who live alone.

We live in difficult times. We must recognize this. We must also recognize that there are ways we can help ourselves and others get through this dark night. No one should feel alone. We are all together in this boat. We will make it through the darkness together. Peace.

Autumn is arriving in my garden as this maple tree attests. In a week or so it will be at its full color.

Bottlebrush (Callistemon) is an old favorite in the south. This bush is still small but blooms well.

Strawberry Tree (Arbutus unedo 'Compacta') is an attractive evergreen shrub that blooms strawberry-like flowers. This one is just budding out. Each flower will make a "strawberry." This plant grows in abundance in the mountains along the coast of California. I brought this one back, in my car, from San Luis Obispo county, CA.

Cool weather means camellia time. This is an early form called Daikaigura variegated. Most camellias bloom in the winter, hence "the winter rose." 

 

NOTES,  19 OCTOBER 2020

Greetings, blog reader, on this Monday, October 19, 2020. Here's a wish that all goes well with you and yours in this trying hour. It is time for our weekly check-in on the issues we have been following for months now.

PANDEMIC. All signs are that the COVID-19 pandemic is spreading apace. There are indications of an up-tick in the numbers as cooler weather is driving people indoors. 

In the world, over 40m people have become infected with the coronavirus and over a million of those have died. According to our usual source, Worldometers, last week, October 12-19, there were 2, 552,974 new cases, a rising rate of 7%, the same as the previous week. As for deaths, 37,388 people in the world died of the disease, an increase of 3%, down slightly from the 4% of the earlier week.

The United States is showing consistent rates of cases and deaths. Last week, the U.S. reported 395,081 new cases, a rate of 5%, the same as the previous week. The U.S. also reported 5,026 deaths of the disease, a rising rate of 2%, the same as the week earlier. In the last seven months, the U.S. has reported 224,732 deaths from covid. With 4 % of the world's population, the U.S. has suffered 20% of the world's deaths in this pandemic. This is a reflection on the failure of a national program to mitigate the spread of this highly contagious and deadly virus.

In South Carolina, there were 6,584 new cases last week, a rising rate of 4%. The total of cases in SC is now 163,790. There were 98 deaths in the state from covid last week, a rising rate of 3%, up slightly from the 2% of the earlier week. In all, 3,650 South Carolinians have died in this plague, all within the last seven months.

In Charleston County, covid continues to spread at about the same pace. Last week, the county reported 355 new cases, a rate of 2%, the same as the earlier week. The county also reported 2 new deaths last week, for a total of 271. 

Alabama showed similar results last week. The state reported 7,284 new cases, a rising rate of 4%, the same as the earlier week. AL also reported 124 deaths from covid, last week, a rising rate of 5%, up slightly from the 4% of the earlier week. The total of deaths in AL from covid now stands at 2,788.

LITIGATION. We are still waiting on several issues to be resolved.

1-Last July, Church lawyers asked Judge Dickson for a stay of his order pending the appeal to the South Carolina Supreme Court. He has not responded.

2-We are waiting on the SCSC to set a hearing, or to render a written decision, on the Church's appeal of Judge Dickson's order nullifying the SCSC decision of Aug. 2, 2017.

3-Church lawyers asked Judge Gergel for a new order of enforcement of his injunction against the Anglican diocese (Sept. 19, 2019). Gergel has not responded.

4-The United States Court of Appeals, Fourth Circuit, in Richmond VA, has set a time period for a hearing of the church case in early December. The exact date will be set later. The hearing will be conducted remotely, by electronic means. The Anglican diocese is appealing Judge Gergl's decision of Sept. 19, 2019. 

5-The Anglican diocese has asked the U.S. Court of Appeals for a stay of their appeal pending the outcome of the Episcopal diocese's appeal of Judge Dickson order to the SCSC. We are awaiting a response from the Court of Appeals.

POLITICAL CRISIS. The national election is two weeks from tomorrow. Of course, nearly 30m voters have already voted. It is amazing to see the tremendous response to early voting. There are long lines everywhere. In some places, there are twenty times as many early voters as four years ago. At the very least, this means that people are much more enthusiastic about voting than last time. So far, Dems are voting early about 2 to 1 over Reps.

In my view, signs are clear that Biden will be elected. The question is the size of the margin and the effects of this on the down ballot. Whereas, SC, AL, and MS will all vote for Trump, the size of the margin will be much less than in 2016. This is seen in the unexpectedly close races for Senate. In SC, AL, and MS, the Republican candidates all tied themselves closely to Trump, yet all are now polling nearly even with, and in some cases below, their Dem opponents. As everyone knows, Lindsey Graham is in the fight of his life for reelection in SC. His fate is entirely uncertain. In AL, the Dem senator, Jones, is holding up well against the Trump clone Tuberville. Even in Mississippi, the Trumpist Rep. senator Hyde-Smith is facing stiff competition from the Dem challenger Espy. All of this tells us that Trump is not as popular in these states as he was four years ago.

Back to the bookies in Vegas. They are betting big time that Biden will win and the Dems will win a majority in the Senate.

What still worries me is we cannot know what Trump and the Trumpistas will do to throw the election into unsolvable chaos. There are numerous heavily armed right-wing gangs "standing by" for word from Trump for action in the streets. The antidote to this is that the American people must stand up and keep these thugs from disrupting our peaceful political process. So far, the institutions of government are working, and that is hopeful.

The next few months are going to be stressful. There is no use in pretending otherwise. All of the crises bearing down on us will get worse. We are in for an ever darkening night. Remember, you are not in this alone. We are all together. Let us find the strength and courage to press on to the dawning light. Peace.

NOTES,   17 OCTOBER 2020

Welcome, blog reader, on this Saturday, October 17, 2020. Today, there are several news items of interest to report concerning the schism in South Carolina.

NEW MEMBERSHIP STATISTICS

The Episcopal Church just released its latest annual membership statistics, for the year 2019. While the church as a whole continues its relentless decline in numbers, the Diocese of South Carolina continues its steady increase. Here are the official figures of baptized membership in the Episcopal Diocese of SC since the schism:

2014 --- 6,387

2015 --- 6,706

2016 --- 7,053

2017 --- 7,309

2018 --- 7,587

2019 --- 7,763

Thus, the Episcopal Diocese of South Carolina has grown by 1,376 baptized members since the schism. This is a 22% increase. Note that the diocese has gained new members steadily.

The new Anglican Diocese of South Carolina has shown the opposite trajectory. Between the schism and 2019, its reported baptized membership went from 23,181 to 20,195. This is a loss of 2,986 members, or a drop of 13%. The decline in communicants was more drastic after the schism. This went from 17,798 to 11,457, a loss of 6,341 communicants, or a fall of a whopping 36% in six years. 

The bottom line is that after the schism of 2012 the Episcopal diocese grew steadily while the Anglican diocese declined continually. 

Another hidden figure in all these numbers is the effect of the schism on membership overall. If we add the baptized membership of both dioceses in 2019 we get a total of 27,958. When Bishop Lawrence began his episcopate in SC, in 2008, the diocese listed 32,000 baptized members. This means that since then, some 4,000 members have disappeared from the rolls of the combined dioceses. Where these people went is an open question but it is clear thousands of church people fled from the churches caught up in the schism. This on top of the constant outflow from the schismatic parishes has left the new diocese just a fraction of the pre-schism diocese. When Lawrence arrived in 2008, the old diocese counted 27,000 communicants. Today, the diocese he heads counts 11,457 communicants, or just 42% of the 2008 number. In other words, the Lawrence diocese today has less than half the number of communicants as the diocese he led in 2008.

HEARING DATE IN U.S. COURT OF APPEALS

On Oct. 13, the United States Court of Appeals, Fourth Circuit, published a tentative calendar order for oral arguments in the church case. The docket lists the hearing between Friday, December 4, and Monday, December 14, 2020. The hearing, before the panel of three judges will be held remotely, that is, by electronic means. The exact time of the hearing will be announced later.

ANGLICAN DIOCESE ASKS FOR STAY FROM U.S. COURT OF APPEALS

On yesterday, October 16, 2020, the Anglican Diocese filed "Motion to Stay Case" with the United States Court of Appeals, Fourth Circuit. This asks the appeals court to "stay," or temporarily suspend, the case before this court pending a decision of the South Carolina Supreme Court.

There are two tracks of the litigation between the two dioceses, one in state court and the other in federal court. 

In state court, the Episcopal diocese has appealed Judge Dickson's decision to the SCSC. Dickson ordered a reversal of the SCSC Aug. 2, 2017 decision that recognized 29 parishes and Camp St. Christopher as property of the Episcopal Church and its diocese. Dickson ruled that the Episcopal Church had no interest in these properties. EDSC appealed Dickson's order to the SCSC; and the SCSC agreed to take the case last August. We are awaiting a hearing and/or decision of the SCSC.

What ADSC is asking now is that the federal court wait on a decision by the state court before it rules.

In federal court, U.S. District Judge Richard Gergel issued a decision on September 19, 2019 recognizing the Episcopal Church as hierarchical and the Church diocese as the only legal heir of the pre-schism diocese. He also issued an injunction enforcing this decision. The Anglican diocese appealed this to the U.S. Court of Appeals, Fourth Circuit, in Richmond, on Oct. 7, 2019. The ADSC then asked both Judge Gergel and the Court of Appeals for a stay of Gergel's orders pending the appeal. Both denied the request. On January 14, 2020, the three appeals judges hearing the case voted 2 to 1 to deny ADSC's request for a stay.

Since the Court of Appeals has already denied a stay, why is the ADSC filing a new request for a stay? The difference, they said in their motion yesterday, was that last August, the SCSC agreed to rule on EDSC'a appeal of Dickson's order. Since that case involved state marks, they said the federal court should wait until the SCSC decides the state case before the federal court makes its ruling about marks.

It seems to this non-lawyer that what ADSC is doing here is to put pressure on the U.S. Court of Appeals to oppose Judge Gergel's recognition of the SCSC decision of Aug. 2, 2017. Gergel interpreted the decision on its face value, that is, a  majority opinion in favor of the Episcopal Church. However, the ADSC subsequently convinced Judge Dickson to reverse the SCSC decision, thus throwing into question the meaning of the SCSC decision. What the SCSC has to decide now is whether to defend the decision of Aug. 2, 2017 or to replace it with Dickson's decision.

It seems to me there is little chance the Appeals Court judges will go along with this request for a stay any more than they did the last time.

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