How do ECUSA and its attorneys manage to contend that there are any “rulings” in the August 2017 decision capable of being enforced? By vastly oversimplifying the jumble of five separate Justices’ opinions, that’s how.

I have demonstrated in earlier posts just how divided and disunited were the individual Justices (including especially Justice Hearn, who had not yet seen fit to disqualify herself — on the ground that she was an active member of one of the parishes whose property was at stake in the case, and had earlier underwritten the effort by dissident Episcopalians to remove Bishop Lawrence from his position). It is logically impossible to derive any legal result from the five opinions other than that three of the Justices (including the one now disqualified) voted to reverse the trial court’s judgment.

So Judge Goodstein’s judgment awarding the property is now reversed. What comes next? Ah, that is the question — and one looks in vain for a mandate (direction) from any three of opinions as got what the Circuit Court should do on remand towards entering a new judgment. As Judge Dickson said at the outset of the arguments on the motions before him:

The Court: The first motion that I have today, going through the list that y’all gave me the last time y’all were here, and I think the one I am most interested in is the motion to decide what I am supposed to decide. The clarification motion, okay.

In response to the contention by ECUSA’s attorney, Mary Kostel, that the Court’s ruling as to who owned the property was “clear”, Judge Dickson responded: “We would not be here if it was clear.”

And indeed, as pointed out in Bishop Lawrence’s response to the petition for mandamus, just one day before filing its motion for enforcement with Judge Dickson, ECUSA had filed a brief in opposition to Bishop Lawrence’s petition to the United States Supreme Court for a writ to review the August 2017 decision of the South Carolina Supreme Court (p. 4):

On May 7, 2018, Petitioners [in the Circuit Court, i.e., ECUSA and its diocese] argued to the United States Supreme Court that it should not grant Plaintiffs’ Petition for Certiorari because the Collective Opinions were “a poor vehicle for review.” Brief of Respondents in Opposition to Petition for Writ of Certiorari, 2018 WL 2129786 at 23-26. Petitioners [ECUSA and its diocese] contended this was so because the Collective Opinions are based on an “incomplete record”, which “contains significant ambiguities.” Id at 2, 23. The Collective Opinions are “fractured not only in rationale but even on facts.” Id at 2, 9. The absence “of a majority opinion on the standard of review” creates “ambiguities” making it “difficult to discern which of the trial court findings stand.” Id. at 23-24.

This is just another example of ECUSA’s unabashed hypocrisy in making diametrically opposed arguments to different courts, depending on the occasion. (For another egregious example, see this post.) For the US Supreme Court, the jumbled South Carolina opinions were “ambiguous” and “difficult to discern”, but in the South Carolina Circuit Court, just one day later, all was suddenly “clear.”

Read it all.

The South Carolina Supreme Court announced yesterday that it has denied the Petition for a Writ of Prohibition submitted on February 21st by The Episcopal Church (TEC) and The Episcopal Church in South Carolina (TECSC), which sought to prevent Judge Edgar W. Dickson from ruling on the Diocese’s and parishes motion to clarify the Supreme Court’s earlier ruling. If granted, the petition would have prevented Judge Dickson from ruling on the case as he has indicated he was about to do. The Supreme Court’s order succinctly states: “Petitioners seek a Writ of Prohibition to prevent the circuit court from clarifying this Court’s decision in Protestant Episcopal Church in the Diocese of S.C. v. Episcopal Church, 412 S.C. 211, 806 S.E. 2d 82 (2017). The petition is denied.”

This ruling by the Supreme Court allows Judge Dickson to proceed with clarifying the Court’s earlier August 2017 ruling, which was comprised of five separate opinions. That situation is unprecedented in the history of the court. This open-ended denial of the petition by the Supreme Court places no restrictions upon the appropriateness of Judge Dickson’s work in interpreting the meaning of the original ruling.

Ironically, this ruling comes almost exactly a year after TEC and TECSC filed a similar Petition with the high court for a Writ of Mandamus meant to force Judge Dickson to rule in the case. The Mandamus Petition asked the Supreme Court to require the Circuit Court to interpret the Supreme Court’s August 2, 2017 ruling favorably for TEC and TECSC. That petition was also denied by the Supreme Court in July of last year.

As before, the Prohibition Petition was an attempt to end run Judge Dickson’s exercise of his discretion in interpreting the August 2, 2017 decision in a manner that may differ from TEC and TECSC’s interpretation.

The Anglican Diocese of South Carolina welcomes this decision by the South Carolina Supreme Court affirming that the Circuit Court is the proper venue to resolve the many uncertain issues arising from the August 2, 2017 decision.

The Rev. Marcus Kaiser, President of the diocesan Standing Committee observed, “In this time, our focus is on caring for our people and praying for a world deeply rocked by the COVID-19 pandemic. Still, we are profoundly grateful that the Supreme Court has denied the request for a Writ of Prohibition, and hope this ruling helps move things along. We pray for Judge Dickson and the complex issues he has to deal with, even as we continue to focus on concerns far more pressing to most people.”

The brief in support of the motion by the Diocese to dismiss this Petition can be found on the Diocesan website, along with further background on the earlier Petition for Mandamus. The August 2, 2017, ruling by the Supreme Court may also be found here.

(#Anglican Diocese of SC) #SouthCarolina Supreme Court denies Petition for Writ of Prohibition by The Episcopal Church https://t.co/PZYCugWZhQ #law #religion #parishministry #history #lowcountrylife #stewardship #ethics pic.twitter.com/v5BuyYENTM

— Kendall Harmon (@KendallHarmon6) April 1, 2020

By invoking the Supreme Court’s original jurisdiction over its inferior courts, the ECUSA parties at this point are demonstrating outright that they no longer have any confidence in Judge Dickson’s integrity to reach an impartial resolution of the puzzle presented to him by the five scattered opinions that came from the Court. Just as they requested the Court last June, ECUSA’s attorneys want to have the Court step in now and put an end to further delay in implementing what they claim was the Court’s “clear mandate.”

The problem is, the Supreme Court’s membership has changed since it rendered its fractured decision. Two of the then Justices (Toal and Pleicones) have retired from the Court, while a third (Hearn) belatedly recused herself from taking any further part in the case. That leaves only Chief Justice Donald Beatty and Justice John Kittredge out of the original panel, and those two were at odds with each other: the Chief Justice supported the official ECUSA line about the Dennis Canon, while Justice Kittredge was having nothing to do with any sort of remote trust that could be imposed on a parish’s property without its written consent.

Under those circumstances, the success of the petition filed by ECUSA will at the outset turn upon the view of it by the two new appointees to the Supreme Court: Justice John Cannon Few and Justice George C. James, Jr. If they agree between themselves on how to deal with the petition, their votes will carry the day by making the tally 3-1 (whether to deny the petition or to grant it). And if they disagree? The result (presuming that the C.J. and Kittredge are still at odds) would be a 2-2 tie, with the result that the writ could not issue.

Long and short of it: The Court will issue the petition restraining Judge Dickson only if the two new appointees both vote with the Chief Justice to grant the writ.

After all, there is nothing compelling the Court to be as impatient as ECUSA is to get a result; the Justices will each still collect their paychecks regardless of how they rule. And after all the time and effort Judge Dickson has expended to get to the point where he is now ready to take up ECUSA’s motions, one would think that the Court will be in no great hurry to take the case away from him, either.

Read it all.

A S Haley–The Brand New TEC Diocese in South Carolina Attempts an End Run by filing a request with the SC Supreme Court in their lawsuit with the historic Anglican diocese of #SouthCarolina https://t.co/WGUBQFRRa4 #law #ethics #lowcountrylife #religion #parishministry pic.twitter.com/1WEHrm0thL

— Kendall Harmon (@KendallHarmon6) February 26, 2020

Take the time to read it all (18 page pdf).

To the Clergy and People of the Diocese of Albany,

Several of you have been asking about the status of the Title IV Disciplinary proceedings directed against me in regard to B012. I have been notified that a Hearing, headed by The Rt. Rev. W. Nicholas Knisely, (President of the Hearing Panel) is scheduled to be held at the Desmond Hotel in Albany on Tuesday, April 21, 2020. The subject of the Hearing is “The Matter of Allegations Concerning the Rt. Rev. William H. Love, Bishop of Albany.”

It is alleged by the Intake Report and Investigator’s Report that I have “violated Canon IV.4.1(c) by failing to abide by the promises and vows made when he [I] was ordained, specifically the Declaration he [I] signed at his [my] ordination as bishop in which he [I] promised to ‘conform to the doctrine, discipline, and worship of The Episcopal Church.’ ”

The above charge is the result of my unwillingness to abide by Resolution B012, passed by the 79th General Convention of the Episcopal Church, which if followed, would allow for same-sex marriages to occur in the Diocese of Albany.

Read it all.

Wait a minute. The crucial language that the “practice of homosexuality is incompatible with Christian teaching” was just approved this past February? That hasn’t been the language in church discipline documents for many years before 2019 and affirmed in multiple votes?

But here is the most crucial point. What, precisely, are the “fundamental differences” that the United Methodists involved in these negotiations — leaders from left and right — cited as the cause of the upcoming ecclesiastical divorce? Was it really LGBTQ issues, period?

Consider this commentary from David French (an evangelical Presbyterian) of The Dispatch:

The secular media will cast the divide primarily in the terms it understands — as focused on “LGBT issues” — but that’s incomplete. The true fracturing point between Mainline and Evangelical churches is over the authority and interpretation of scripture. The debate over LGBT issues is a consequence of the underlying dispute, not its primary cause. …

Thus, at heart, the disagreement between the Evangelical and Mainline branches of Christianity isn’t over issues — even hot-button cultural and political issues — but rather over theology. Indeed, the very first clause of the United Methodist Church’s nine-page separation plan states that church members “have fundamental differences regarding their understanding and interpretation of Scripture, theology and practice.”

Ah, there’s the rub. Who wants to put “Scripture, theology and practice” in a news report — especially at NBC Out and similar structures in other newsrooms — when you can blame the whole denominational war over conservatives refusing to evolve on LGBTQ issues?

Read it all.

After decades of fighting, United Methodists avoid a visit from Ghost of the Episcopal Future? https://t.co/o1OptQUJJ9

— GetReligion (@GetReligion) January 6, 2020

Read it all and you may watch the whole video also (a little over 43 1/2 minutes). You may also find the case documents here.

On November 11, 2019 the Episcopal Church in South Carolina filed yet another petition (41 page pdf) in Federal Court this time objecting to the Diocese’s use of the name The Anglican Diocese of South Carolina, as well as references found on the diocesan website pertaining to its history.

Our legal team, in conjunction with the Standing Committee are formulating a response.

On September 19, 2019, U.S. Federal District Judge Richard Gergel ruled that St. Philip’s Church, and the other parishes in our diocese that disassociated from The Episcopal Church (TEC), are free to continue using their historic parish names. The formal, legal name of our parish is “The Protestant Episcopal Church of the Parish of Saint Philip, in Charleston, in the State of South Carolina.” For some years, we have simply been known as “St. Philip’s Church.” Judge Gergel ruled that the historic inclusion of the word “episcopal” in our name does not constitute trademark infringement, trademark dilution, or false advertising as claimed by TEC and its affiliated diocese, The Episcopal Church in South Carolina (TECSC).

In a separate, contemporaneous order Judge Gergel ruled that the seal and names of our diocese (specifically, “Diocese of South Carolina,” “The Episcopal Diocese of South Carolina,” and “The Protestant Episcopal Church in the Diocese of South Carolina”) infringe upon the trademarks of TEC and TECSC and that our diocese and all of its parish churches, including St. Philip’s Church, are permanently enjoined from using these marks or any mark confusingly similar. St. Philip’s is now complying with this injunction by discontinuing use of any of the enjoined names or marks. On September 20, our diocese changed its name to “The Anglican Diocese of South Carolina.” At this point, our diocese and St. Philip’s are reviewing these Orders with our litigation counsel to determine next steps.

The rulings in federal court arise from the case brought by TECSC and TEC, originally filed in 2013, against our diocese alleging trademark infringement, trademark dilution and false advertisement. In 2018 St. Philip’s, and the other parishes associated with our diocese, were added as defendants. It is important to note that this federal trademark and false advertising litigation does not affect the property ownership issues of St. Philip’s Church and the other parishes. Those issues currently remain in state trial court before Circuit Judge Edgar W. Dickson.

Judge Dickson has held two hearings on motions related to the property ownership issues. Last November he held hearings on a motion filed by us, our diocese, and associated parishes, seeking clarification of the South Carolina Supreme Court opinions. This motion includes our argument that the Supreme Court opinions concluded that those parishes that did not expressly accede in writing to TEC’s Dennis Cannon retain ownership of their property; that St. Philip’s Church, and the other parishes, never expressly acceded in writing to the Dennis Canon; and that no judge has made a finding of fact to the contrary. This motion is still under consideration by Judge Dickson.

This past July, Judge Dickson held a hearing in a separate state court case involving the property issues, a case brought under the state Betterments Act. The suit under the Betterments Act alleges that if TEC or TECSC is ultimately determined to be the owners of property held by our diocese and its parishes, including St. Philip’s Church, then the diocese and parishes are entitled to be compensated for all improvements made to the properties. On August 28th Judge Dickson issued an order rejecting TEC and TECSC’s motion that this Betterments Act suit should be dismissed. Judge Dickson has also ordered that all of the property ownership issues and other state court issues should be mediated by the parties. Mediation is currently scheduled for
September 26th.

–Ben A. Hagood, Jr.
Chancellor, St. Philip’s Church

Read it all.

From there:

On Thursday, September 20 District Court Judge Richard M. Gergel ruled in favor of The Episcopal Church (TEC) and its local diocese, The Episcopal Church in South Carolina (TECSC), in a federal trademark case. In the 73-page decision, Judge Gergel issued an injunction preventing the Diocese and parishes in union with it from using the names and seal of the diocese. These are: “Diocese of South Carolina”; “The Episcopal Diocese of South Carolina”; “The Protestant Episcopal Church in the Diocese of South Carolina” and The Diocesan Seal.

“We’re disappointed, of course,” said the Rev. Marcus Kaiser, Rector of the Church of the Holy Comforter in Sumter, who serves as the President of the Standing Committee, which also serves as the Diocese’s Board of Directors. “But changing our name doesn’t change who we are, or who we’ve ever been. It simply changes the name under which we operate.”

The Standing Committee met Friday morning and unanimously voted to adopt the name “The Anglican Diocese of South Carolina.” Although Counsel for both the Diocese and the Parishes who are studying the order believe it likely will be appealed, even erroneous orders still must be obeyed. “I am grateful,” noted Bishop Lawrence, “for the faithful response of our Standing Committee, the diocesan staff, and legal team in seeking to comply with this order. We work not in fear, for as St. Paul has reminded us, God has not given us a spirit of fear but of power and love and a sound mind.”

On August 28th , in one of two state cases regarding the ownership of parish and diocesan property, Judge Edgar Dickson issued an order adverse to TEC and TECSC. He rejected their request to dismiss the diocese and parish claims to recover the value of improvements to parish and diocesan real property under the Betterments Statute if it is decided that TEC has title to those properties. He also stated that he had yet to rule on motions before him concerning the question of whether the five separate opinions of the Supreme Court found that there has been any Diocesan or Parish loss of property.“The Court…recognizes that were it to rule against the Defendants [TEC and TECSC] on some or all of those motions, this betterments action could become moot….” “…the Court will consider, for purposes of ruling on the motion to dismiss only, that the betterments action is ripe.”

The state cases were ordered to be mediated by Judge Dickson which will be held on September 26th. That mediation, which had been scheduled for earlier this month, was postponed due to Hurricane Dorian.

Read it all.

Breaking!! Our appeal to the state Supreme Court has been accepted and oral argument is set for 9 a.m. Thursday, Dec. 5. pic.twitter.com/e8jrmoSSih

— Diocese • Fort Worth (@e_quips) August 30, 2019

From there:

St. Matthews, S.C. (July 23, 2019) – Immediately on the heels of The South Carolina Supreme Court on June 28,  denying the Petition for a Writ of Mandamus submitted by The Episcopal Church in South Carolina (TECSC), Judge Edgar W. Dickson promptly resumed proceedings on the related legal matters.  The hearing on the Betterments Statute issues, which had been cancelled in March when the petition for Mandamus was filed, was held today in the Calhoun County Courthouse in St. Matthews, SC.

The Betterments Statute, under South Carolina law, provides the means for a party making good faith improvements to property they believe they own, to be compensated for the value of those improvements, if a court makes a final determination that another party is the true owner.   Many of the parishes in the Diocese of South Carolina can trace their unbroken history back to the colonial era of the state. During that entire time, there has never been any question of their unencumbered title to property or legal identity.  All have proceeded throughout their history with the maintenance and improvement of their properties with these assumptions.

The motion previously filed by TECSC asked for the dismissal of the case, primarily on the basis that it had not been filed in a timely fashion and that they were not actually taking ownership of the churches but merely exercising their trust interest in the property. The Diocese maintained that the court needed to decide which, if any, of the 29 parishes agreed (acceded) to the Dennis Canon before it could decide whether this case should proceed. As to the eight parishes that TEC and TECSC concede did not agree to the Dennis Canon, Judge Dickson asked Diocesan counsel to submit proposed orders making the finding that those parishes did not accede to the Denis Canon.

The five separate opinions that constitute the Supreme Court decision resulted in a fractured ruling whose interpretation is currently under consideration by Judge Dickson.  The effort to force a particular interpretation of that decision was the essential purpose of the recent Petition for Mandamus filed by TEC and TECSC which was denied by the Supreme Court on June 28, 2019.

Judge Dickson took the motion to dismiss the Betterments case under advisement. He also ordered the parties to mediate all the issues raised in the two state lawsuits referencing the relatively recent Supreme Court order which requires mandatory mediation in civil cases.

#SouthCarolina Circuit Court Hears Arguments on Betterments Statute and Orders Mediation in Complex #episcopalchurch case https://t.co/BfbaOVKbu2 #religion #law #lowcountrylife #ethics #stewardship #history pic.twitter.com/PpA5Y1kGy9

— Kendall Harmon (@KendallHarmon6) July 26, 2019

Columbia, S.C. (July 1, 2019) – The South Carolina Supreme Court announced today that it has denied the Petition for a Writ of Mandamus submitted by The Episcopal Church (TEC) on March 22, 2019, seeking to compel Judge Edgar W. Dickson to rule in their favor. The Parishes and the Diocese of South Carolina (Diocese) responded on March 26, requesting the Supreme Court’spermission to intervene. On April 12 they submitted their Return to the Petition.

Today’s action by the Supreme Court allowed the intervention of all the parties whose property TEC seeks and confirms the arguments presented in the Return which they filed. The intent of the Petition requested by TEC was to have the Supreme Court require the Circuit Court to interpret the
Supreme Court’s August 2, 2017 ruling as TEC wished it interpreted. The Parishes and the Diocese opposed the Petition essentially arguing that the issues were before Judge Dickson who was using the discretion afforded him by state law to resolve them.

Read it all.

#SouthCarolina Supreme Court Allows Parishes and Diocese to Intervene and Denies Writ of Mandamus Petition by The Episcopal Church+its new diocese https://t.co/Xd48whpGau #law #religion #lowcountrylife pic.twitter.com/54yfSJx0CA

— Kendall Harmon (@KendallHarmon6) July 1, 2019

Update: Those interested in the very new TEC diocese of South Carolina pr on this may find it there.

In accordance with Canon IV.7.10 of the Constitution and Canons of The Episcopal Church, I do plan to appeal the above disciplinary action taken against me by the Presiding Bishop and in so doing, I will also be challenging the authority and legality of Resolution B012 passed at the 79th General Convention. I have already verbally informed the Presiding Bishop’s Office of my plans. This will soon be followed by an official written appeal as required by the Canons.

While I obviously would rather not have had disciplinary actions taken against me, and hope to see it overturned in the near future, I will abide by the restrictions placed on me by the Presiding Bishop during the appeals process.

With that said, as your Bishop, it is important that you understand I have not changed my understanding or teaching regarding the sacrament of Holy Matrimony. The official teaching of this Church as outlined in the rubrics of the Marriage Service in the Book of Common Prayer is that: “Christian marriage is a solemn and public covenant between a man and a woman in the presence of God” (BCP 422.) Canon 16 of the Constitution and Canons of the Diocese of Albany upholds this teaching and remains in effect until it is either changed by the Diocesan Convention, or is legally proven to be over-ridden by the legitimate actions of General Convention; none of which has yet taken place.

Read it all.

The Diocese of South Carolina (Diocese) continues on the long road to freedom from The Episcopal Church (TEC), filing motions for summary judgement in the now nearly six-year-old federal suit brought by its former denomination. Motions by the Diocese and its fifty-four parish defendants ask the Court to acknowledge, as a matter of law, they have neither infringed on TEC trademarks, diminished the value of those marks or harmed the denomination by continued use of names which have been in use before the denomination existed.

The current federal litigation was initiated by TEC in 2013, after the Diocese made the decision to disassociate from the national denomination it helped charter in 1789, five years after its own founding. The decision to leave was made in the fall of 2012 after denominational leadership attempted to wrongly remove its duly elected bishop. Over 80% of the congregations and their members affirmed that decision at a special Diocesan Convention in November 2012. TEC has never accepted that decision by 23,000 parishioners of the Diocese, continuing to litigate all such efforts by congregations and dioceses across the country wishing to free themselves from its control.

The original federal court complaint was initially against Bishop Lawrence alone, asserting that he continued to hold himself out falsely as a bishop of TEC, thus creating “confusion”. In April of this year the case was expanded to include the Diocese and all its congregations, even those formed after the disassociation who had no prior affiliation with the denomination. All are now charged with being party to the willful creation of confusion for attendees by virtue of using their historic names and continuing to conduct worship as they always have. These actions are alleged to mislead attendees to believe these are still TEC congregations.

Read it all and make sure to follow all the links.

The Long Road to Freedom: The Diocese of #SouthCarolina and Parishes File 38 Motions for Summary Judgement https://t.co/zPwxmT2uD5 #religion #law #history #anglican #parishministry #stewardship #ethics #lowcountrylife

— Kendall Harmon (@KendallHarmon6) December 13, 2018

#EpiscopalChurch statistics from the diocese of San Joaquin average Sunday attendance from 3965 in 2007 to 810 in 2017 #religion #usa #parishministry pic.twitter.com/vTStPtTb2C

— Kendall Harmon (@KendallHarmon6) November 21, 2018

One priest in the diocese told TLC he “intends not to abide by” Love’s directive and will celebrate a same-sex marriage if the opportunity arises.

The Rev. Glen Michaels is an assistant attorney general for New York State. He serves as priest in charge of All Souls Memorial Chapel in St. Hubert’s in the Adirondacks, about 100 miles north of Albany. All Souls is open only in the summer, and Michaels said it frequently serves as a wedding venue.

Michaels said that as he reads the canons, Love’s prohibition of same-sex marriage is “not enforceable” because of the action of the General Convention.

“For better or worse I see myself as a good person to challenge this,” he said, because his livelihood does not depend on his work as a priest.

Read it all.

Read it all.

Judge Dickson Will Determine What the Supreme Court Opinions Mean

ORANGEBURG, S.C. (November 19, 2018)  –  Today, in the Orangeburg County Courthouse the honorable Edgar W. Dickson, heard arguments from the Diocese of South Carolina and the Episcopal Church on motions directed to the ruling of the South Carolina Supreme Court.

The judge began by asking, “Who thinks this case will be resolved today?” When one person in the courtroom raised a hand the judge indicated he hoped they were pulling for South Carolina in their upcoming game against Clemson, and concluded, “Six judges have heard this case. I’m number seven. I hope that’s a lucky number.”

While five motions are presently before the court, Judge Dickson said, “the motion I’m most interested in” is the issue of what he has to decide.

Alan Runyan argued for the Diocese that given the lack of clarity in the five separate opinions, Judge Dickson had to first decide, what, if anything, the Supreme Court decided. The slide presentation summarizing his argument may be found here. Mr Runyan noted at the beginning of his argument  that the last statements by half the Supreme Court were that “We have given little to no coherent guidance in this case” and “The Court’s collective opinions give rise to great uncertainty” in “this matter of great importance.”

Tom Tisdale, counsel for TECSC and Mary Kostel, Counsel for TEC, presented their arguments which essentially repeated their prior assertions that “the decision has been made,” by the South Carolina Supreme Court, and all that was left was enforcement of the results.

It was obvious that Judge Dickson had problems with the argument that it is clear what the Supreme Court decided.

Addressing Mr. Tisdale, he asked, “How many times have you seen a Supreme Court decision with five separate opinions?” Mr. Tisdale acknowledged that it had never happened in the history of the court.

When counsel for TEC continued to assert that the result was clear, the judge replied,  “Like through a glass darkly.”

In commenting on the present ruling he observed, “Usually when I get something remitted it’s clear what I’m supposed to do.” In this case, however, interpreting the Supreme Court ruling will entail “trying to ferret out what they meant.”

In concluding he observed, “I have to decide and whatever is decided will be appealed by one side or the other.”

The Judge indicated he would be sending follow up questions by email for both sides.

A national church is suing its former followers in Fresno in a real estate battle launched by the church’s decision to accept [non-celbiate] gay…clergy members.

Attorneys delivered opening arguments Monday in the case pitting The Episcopal Church and the Diocese of San Joaquin against St. Columba Church and its congregants who split away from the religion.

The Episcopal Church says the administration at St. Columba and its pastor, Rev. James Snell, illegally took possession of the church on Palm and Shaw in 2008.

Read it all.

You may find the bishop’s letter about this there.

For years, top legal minds have asked the U.S. Supreme Court to settle property fights between big national churches and breakaway congregations.

For years, they have been turned away before ever reaching the court’s marble steps.

Whether a South Carolina case becomes the one that finally lands in the high court is a question that soon will be answered. The case could make history and carry implications for disputes that have divided other religious denominations throughout the country.

Read it all.

After reviewing the history of church property cases in the United States Supreme Court, and fleshing out what that Court meant by the term “neutral principles”, the Texas Court of Appeals then focused on its own Supreme Court’s recent decision in Masterson v. Diocese of Northwest Texas (Tex. 2013) 422 S.W.3d 594 as instructing how neutral principles of law are used to resolve church property disputes in Texas. It set out the following concise summary of Masterson’s holdings (pp. 78-79):

• • Absent specific, lawful provisions in a corporation’s articles of incorporation or bylaws otherwise, whether and how a corporation’s directors or those entitled to control its affairs can change its articles of incorporation and bylaws are secular, not ecclesiastical matters, and an external entity—under the former or current statutory scheme—is not empowered to amend them absent specific, lawful provision in the corporate documents. Id. at 609–10 (citing Tex. Bus. Orgs. Code § 3.009; Tex. Rev. Civ. Stat. Ann. art. 1396–2.09).

• • The TEC-affiliated bishop could, as an ecclesiastical matter, determine which faction of believers was recognized by and was the “true” church loyal to the Diocese and TEC, and courts must defer to such ecclesiastical decisions, but his decision identifying the loyal faction as the continuing parish does not necessarily determine the property ownership issue, and his decisions on secular legal questions such as the validity of the parish members’ vote to amend the bylaws and articles of incorporation are not entitled to deference. Id. at 610.

• If the title to the real property is in the corporation’s name and the language of the deeds does not provide for an express trust in favor of TEC or the Diocese, then the corporation owns the property. Id.

These propositions are all correct statements of Texas law as expounded in Masterson. Followed correctly, they should have led to a correct decision in the Fort Worth case. Instead, look where the Salazar court ended up…

Read it all.

From there:

On April 5, 2018, the Second Court of Appeals issued its long-awaited Opinion in our dispute with TEC over the ownership of our church property, and it essentially reversed the previous trial court ruling in our favor (dated July 2015). After review by our legal team, we have concluded that this most recent appellate court opinion is not consistent with what the Texas Supreme Court previously decided when it addressed this controversy in 2013 and that we will appeal it.

In reversing the original trial court ruling in favor of TEC’s claims, the Supreme Court instructed the trial court to rehear the case and to use neutral principles of law in reaching a conclusion, instead of deference to TEC. This means that Texas laws concerning corporations, property, trusts, and unincorporated associations are to direct the outcome of the lawsuit.

The Texas Supreme Court ruled in the Masterson case (No. 11-0332) that:

• Changes made to “articles of incorporation or bylaws are secular, not ecclesiastical, matters.” (page 25)
• “…[W]e have held that Texas courts cannot simply use deference or identity methodology principles to resolve this type of issue.” (page 27)
• “…[I]dentifying the loyal faction” does not “determine the property ownership issue under this record, as it might under the deference or identity methodology.” (page 27)

We are disappointed that the appellate court chose to decide this as an identity case. We remain hopeful that we will prevail under neutral principles of law should the Texas Supreme Court address this controversy for the second time. We will file a petition for review in May or June but will likely not know whether the Court will take the case for decision until late this year or early 2019.

In the meantime, everything remains as it has been, as we continue to wait for a conclusion to this tiresome litigation now entering its tenth year before the courts. Our trust is in the Lord Jesus Christ alone, and we rely upon His grace to sustain us with faith and patience in the months to come. Please continue to pray for our legal team and for the justices who will address our petition.

The new Episcopal Church Diocese in South Carolina and TEC have filed a motion to extend the time to file a response from March 29, 2018 to April 30, 2018. Interested blog readers may continue to follow the case there on the SCOTUS website.

Brothers and Sisters in Christ,

Today a further session of mediation with Senior U.S. District Judge Joseph F. Anderson Jr. was conducted.  Mediation is now in recess until January 11-12 in Columbia.

The clergy of the Diocese are reminded that Judge Anderson is allowing no discussion, outside of mediation sessions, of what has been said there.

As the Diocese continues to faithfully journey through this process of litigation at multiple levels, I ask your continued prayers for wisdom and discernment on the part of the Bishop, legal counsel and all the Diocesan leadership.

In Christ’s service,

–The Rev. Canon Jim Lewis is Canon to the ordinary in the Diocese of South Carolina