Both “sides” involved have stated the mediation with Senior U.S. District Judge Joseph F. Anderson Jr. has been recessed until December 4-5, 2017.
Category : TEC Conflicts: South Carolina
Mediation Update–Both the Anglican Diocese of South Carolina+the new Episcopal Church Diocese in SC announce its recessed until early December
(Local Paper) Edward Gilbreth–Strong judicial disagreements fuel the South Carolina Anglican/Episcopal controversy
Another petition supporting the rehearing filed Sept. 25 by various churches and the Diocese, includes these arguments:
“The sole basis on which Appellants have argued, and the Court has so held, that St. Philips (as an example) should be divested of its property is that St. Philips Church, in 1987, acknowledged the purpose of the parish corporation as being ‘in accord with the Articles of Religion’ of the national church (or more precisely the Protestant Episcopal Church in the United States of America, according to the Articles of Restatement filed with the SC Secretary of State by St. Philips in 1987.)
“The Articles of Religion of the national church were established in 1801, one hundred and seventy-eight years prior to the Dennis Canon. The articles of Religion, similar to those for other Protestant Churches, contain nothing more than a summary of the religious doctrine, theology and beliefs of the national church and St. Philips Church. The Articles of Religion do not mention the constitution or any of the canons of the national church, let alone the Dennis Canon adopted 178 years after the establishment of the Articles of Religion.”
Interestingly, The Episcopal Church has never required subscription to the Articles, which now appear in a section called “Historical Documents” in the back of the Book of Common Prayer.
All this, along with the controversy surrounding Justice Hearn’s participation in the initial ruling due to her family involvement in a church with ties to the national church, makes for interesting consideration as the mediation for and possible rehearing of the Diocese’s case approaches.
Read it all.”>Read it all.
The Diocese of South Carolina has called that…ruling into question because of state Supreme Court Justice Kaye Hearn’s involvement in the Episcopal Church. In fairness, the motion for a rehearing should be granted, and Justice Hearn should recuse herself. But the rehearing request has yet to be acted on.
The purpose of mediation beginning Monday is to determine how to implement the August decision as amicably as possible. Even so, it still offers an opportunity for the disaffected church groups to preclude further legal battles over the valuable and historic properties in question.
Neither the Diocese nor the Episcopal Church in South Carolina may ever bridge the spiritual and philosophical divides that caused their separation. Nor need they do so. Both groups are free to worship as they see fit — a principle enshrined in the Constitution.
But an agreement should be reached that lets the Diocese of South Carolina and the Episcopal Church in South Carolina part ways while remaining in the churches they have called home for so many generations.
Failure to do so would do further harm to the Christian spirit of unity and goodwill that ought to bring Lowcountry churches together rather than tear them apart. Reaching a mediated accord could avoid years of additional lawsuits and appeals and divisions among friends and neighbors.
It has been publicly announced that the Diocese of South Carolina will enter into mediation with The Episcopal Church (TEC) at the Federal Courthouse in Columbia November 6-8. All parties to the ongoing litigation in both the State and Federal courts have agreed to participate. Many understandably hope this will bring an end to years of litigation. What is an appropriate expectation of the outcome?
A word often used by the TEC bishop and legal counsel is “reconciliation”. While an attractive word to readers and pleasing to the ear, it creates false expectations. To be reconciled implies, by definition, coming back together. It requires one or both parties to repent of their past actions and positions. That is unreasonable in this case.
Neither the Diocese of S.C. nor TEC has shown any evidence of changing course on any of the issues that created the initial divisions years ago. The Diocese has moved on, becoming formally affiliated with the Anglican Church in North America (ACNA) and TEC has continued with its own theological agenda. The two are not compatible and are, if anything, further apart than ever.
And nothing in the behavior of TEC suggests their goals with departing parishes and Dioceses have changed over time. They continue to litigate in the Diocese of Quincy, Illinois despite having lost at the highest level in the state courts there. In the Diocese of San Joaquin, California, after spending $15 million to recover the parish properties, only 21 have been declared “viable” with the other 25 reported as going up for sale. In Bishop Adams former diocese, the people of Good Shepherd, Binghamton, NY were denied the purchase of their former church, seeing it sold for 1/3 their offer to become a mosque instead. The pattern of behavior is clear. For TEC, “reconciliation” has meant, “surrender, return the property and we’ll forgive you so you can rejoin us”. That is not a viable way forward.
So what is a reasonable expectation? What might be sought, and could work, is a “settlement” that ends all the litigation and enables both dioceses to go their separate ways in peace. The Diocese of S.C. granted that grace from the beginning in 2012 to parishes wishing to remain with TEC. The 80% who chose to disassociate from TEC should be allowed to do the same. The two opposing dioceses share a common history in S.C. and a heritage each has some claim to. Perhaps there is a way to honor that reality outside the “winner takes all” setting of the courtroom.
The resources of both groups would be preferably spent on the work of ministry to which each feels called. A workable settlement would allow each to go its way in peace to pursue their separate callings. If that is the goal of the mediation, by both parties, then much good could come of it. Failing that, expect the litigation to continue.
[The] Rt. Rev. Dr. C. Fitzsimons Allison is 12th Bishop (ret.) of the Diocese of South Carolina.
— Kendall Harmon (@KendallHarmon6) October 30, 2017
The Church Times on the Anglican/Episcopal Conflict in South Carolina (III): Kendall Harmon’s letter to the editor
From Canon Kendall S. Harmon
Sir, — Thank you for your article about the sad South Carolina Anglican/Episcopal dispute (News, 6 October). While we hope for a peaceful settlement, we have grounds for being very cautious based on the past behaviour of Episcopal Church bishops and lawyers.
Specifically, in this instance, the current Provisional Bishop of South Carolina, the Rt Revd Gladstone “Skip” Adams, was formerly Bishop of Central New York. While he was bishop of that diocese, he got into a dispute with one of his parishes, the Church of the Good Shepherd, Binghamton, New York. After the court ruled that the parish did not belong to the parishioners but the diocese, the parish offered $150,000 to buy back their own church from the diocese as a way forward for both sides. The diocese refused but ultimately sold the building to a worshipping community of Muslims for $50,000.
It was the late business and management guru Peter Drucker who said that “the best indicator of future performance is past performance.” Given what happened in Central New York with the same Episcopal Church leader, you can see why we in South Carolina are wary.
Please join us in praying for all involved.
KENDALL S. HARMON
Canon Theologian, Diocese of South Carolina
The Church Times on the Anglican/Episcopal Conflict in South Carolina (II)–The timeline accompanying the article
(This timeline is very slightly edited for the purposes of greater accuracy by yours truly. Where it occurs it is noted in italics–KSH).
Also from here:
SOUTH CAROLINA: A TIMELINE
The Diocese of South Carolina is founded by the parishes of the former South Carolina colony.
The Diocese becomes one of the nine founding dioceses of the Episcopal Church in the US.
Church leaders in the diocese begin to express disagreement over issues such as the ordination of partnered gay clerics, leading to the departure of some leaders. Eight dioceses pass resolutions requesting alternative primatial oversight.
The diocesan convention of South Carolina elects the Very Revd Mark Lawrence as its Bishop, and while he does receive the endorsement of a majority of bishops in the Episcopal Church (TEC), he does not from the majority of Standing Committees, based on a technicality.
2008 After a second election, Mark Lawrence receives the required majority of both bishops and standing committees, having stated that he did not intend to break away (News, 9 August 2007).
2008-2009 The National Episcopal Church, without the knowledge or permission of the Diocese of South Carolina, retains the services of a lawyer to work on its behalf. The lawyer was a former chancellor of the Diocese of South Carolina.
The Supreme Court of South Carolina (overturning a ruling from 2003) rules that the property and assets of All Saints’, Pawley’s Island, belong to the group that voted to leave TEC and join the Church of the Province of Rwanda and the Anglican Mission in America (News, 1 October 2009).
April The Diocese of South Carolina declares that the Presiding Bishop of TEC, Dr Katharine Jefferts Schori, has no authority to retain lawyers in the diocese, and demands that she withdraw them (News, 8 April 2010).
September TEC accuses the Diocese of removing references to it from the official name of the churches and websites of more than half its 44 parishes. Bishop Lawrence denies the claims (News, 29 September).
October The diocesan convention agrees six resolutions, which, it says, will “protect” it from intrusions from the broader Episcopal Church (News, 27 October 2010).
October TEC accuses Bishop Lawrence of filing amendments to the corporate charter of the Diocese’s non-profit corporation, deleting all references to the Episcopal Church and obedience to its constitution and canons. It also says that he had “done nothing to stop other parishes which are outwardly moving in the direction of withdrawal” from TEC (News, 14 October 2011).
November A disciplinary board for bishops of the Episcopal Church rules that Bishop Lawrence had not abandoned communion between TEC and his Diocese (News, 2 December 2011).
October A second disciplinary panel is convened, and Bishop Lawrence has his ministry restricted by the Presiding Bishop, pending an investigation. The Diocese responds with a resolution threatening to “disaffiliate” from TEC, which is passed (News, 19 October 2012).
December The Presiding Bishop declares that Bishop Lawrence has been removed from the ordained ministry of the Episcopal Church, and calls a diocesan convention to elect a new bishop and standing committee for the continuing diocese, made up of 12 parishes and congregations who wish to remain in the Episcopal Church (23 November 2012).
January A lawsuit is filed in the South Carolina Circuit Court against TEC by two corporations claiming to represent the Diocese of South Carolina and some of its parishes, seeking a declaratory judgment that they are the sole owners of the property, name, and seal of the Diocese. This includes 29 parish churches, valued at $500 million (News, 11 January 2013).
A judge issues a temporary restraining order preventing the new TEC diocese from using the name or symbols of the Diocese. It becomes the Episcopal Church in South Carolina (TECSC) to comply.
The Rt Revd Charles G. vonRosenberg is elected Provisional Bishop and immediately invested by the Presiding Bishop. A new standing committee and diocesan council are elected.
March Bishop vonRosenberg files a complaint in the US District Court against Bishop Lawrence, citing violations of the Lanham Act, a US federal law prohibiting trademark infringement and false advertising. The suit, vonRosenberg v. Lawrence, states that Bishop Lawrence is engaging in false advertising by representing himself as bishop of the Diocese.
TEC also files its response to the breakaways’ lawsuit, saying that Bishop Lawrence and the Diocese have no authority over the assets or property of the diocese.
August More than 100 clerics are given notice of removal from the ordained ministry of the Episcopal Church by Bishop vonRosenberg, worded so that they can return in the future. (Three clerics have since returned.)
A back and forth of appeals — to add four individuals, including Bishop Lawrence, to the breakaway lawsuit; and to include in the trial alleged correspondences before the suit between lawyers and parties. These are dismissed by Judge Diane S. Goodstein. She rules that the trial must begin on 8 July.
A 14-day trial is held in the Dorchester County Courthouse in St George, South Carolina, before Judge Goodstein (News, 8 August 2014).
February Judge Goodstein rules in favour of the breakaway group, giving them the right to hold on to the name and property of the Diocese. The Episcopal Church appeals to the South Carolina Supreme Court (News, 13 February 2015).
March The US Court of Appeals for the Fourth Circuit rules in favour of Bishop vonRosenberg in the federal false-advertising lawsuit, sending vonRosenberg v. Lawrence back to the US District Court in Charleston for another hearing. A US district court declines to hear the vonRosenberg v. Lawrence case until the state case is resolved, however.
June The Episcopal Church [in South Carolina (ECSC)] claims to offer a settlement allowing the disputed parishes to keep their church properties if the Diocese and trustees relinquished their names, identities, and all assets. The Diocese says that the offer did not come with authority to bind all parties on the Episcopal Church side, however, and that the counsel for the national Episcopal Church did not sign the offer and provide the necessary proof of authority, as requested.
Bishop vonRosenberg announces his retirement as Provisional Bishop. The Rt Revd Gladstone B. Adams III is elected and takes office in September.
March The breakaway Diocese votes to join the Anglican Church in North America (News, 17 March).
August The South Carolina Supreme Court overturns portions of the ruling from 2015 stating that the diocese could keep church property and retain its name. It states that the Diocese must return the 29 parish churches, valued at $500 million, to the Episcopal Church (News, 18 August).
The federal case, vonRosenberg v. Lawrence, is assigned to US District Court Judge Richard Gergel, and scheduled to proceed to trial in March next year.
September Post-opinion motions are filed by the breakaway Diocese, seeking a rehearing and asking for recusal of one of the Supreme Court justices, Justice Kaye G. Hearn, for “bias and conflict of interest”. The Episcopal Church requests in its reply that the “wrong, rehashed, and untimely” post-motions are denied a re-hearing. The Diocese reaffirms its position in another reply. The court’s decision is pending.
October All three parties and their legal representatives meet Senior US District Judge Joseph F Anderson Jr. in Columbia SC to discuss dates and procedures for mediation among all parties in both the federal and state litigation. It is agreed that mediation will take place on 6 November for three days.
The Diocese left the Episcopal Church in 2012 after years of disagreements over issues including the ordination of openly gay clerics. The parties have since been entangled in a bitter dispute over the right of the congregations of the breakaway Diocese to retain their identity and property, including 29 parish churches valued at $500 million.
In August, the state’s Supreme Court overturned portions of a ruling from 2015 that the Diocese could keep church property, and retain its name. In February 2015, the Circuit Court Judge, Diane Goodstein, had ruled that the separated diocese had the right to leave, and rejected the Episcopal Church’s argument that it had legal interest in the diocese’s property (News, 13 February 2015).
The South Carolina Supreme Court said in a complex 77-page ruling that those parishes that had “acceded” to a canon law, known as the Dennis Canon — which states that a member diocese cannot voluntarily withdraw its membership of the Episcopal Church if its assets are “trusted” in the national body — did not have full rights to retain its property. Only the seven congregations which had not acceded were judged to have these retaining rights.
The Canon to the Ordinary for the Diocese of South Carolina, the Revd Jim Lewis, explained on Monday: “Justices decided that, if a parish of the diocese had ever acceded to the governance of the Episcopal Church in written form, then that was considered good enough to qualify as having agreed to the Church having a trust interest in their property. We based our actions on the All Saints’, Pawley’s Island, case back in 2009, which established the precedent that the Dennis Canon did not have effect in the state of South Carolina.”
Bishop C FitzSimons Allison–The South Carolina Supreme Court is destroying our church based on a massive misunderstanding
— Kendall Harmon (@KendallHarmon6) October 24, 2017
The state Supreme Court’s decision taking church buildings and millions of dollars of real estate from the Diocese of South Carolina prompted retired Chief Justice Jean Toal to call it “nothing less than judicial sanction of the confiscation of church property.”
The key to this unfortunate decision is the false assumption that the Episcopal Church is hierarchical. F.V. Mills’ Bishops by Ballot: an Eighteenth Century Ecclesiastical Revolution (New York: 1978) documents that the church’s founding fathers were adamant that they were establishing not a top-down but a bottom-up governance based on republican concepts “in place of hierarchical ones.”
No wonder delegates from Maryland, Virginia and South Carolina insisted at the organizing convention for the Episcopal Church that they have no bishops. The hostility toward tyranny was built into the church’s foundation, accepting only bishops whose authority would be “spiritual” and subject to checks and balances from the bottom up.
As one who has taught history for more than two decades, I can confidently assert that the national church was carefully founded not to be an hierarchical church. We have never even called the presiding bishop an archbishop, as most Anglican provinces do. The one time the General Convention considered creating a truly hierarchical church (1898), the proposals were clearly and forthrightly rejected.
Practical examples of this reality abound. One is especially applicable: Several dioceses separated from the national church when their states seceded from the union; following the Civil War, they returned only after voting to do so. Such is the inherent independence of dioceses.
As a bishop in the Episcopal Church, I could never have imposed a candidate for rector on any parish; I could only suggest. Quite often, my suggestions were not followed. Nor could I simply remove a clergy person, no matter how badly the parish might wish it, without a long canonical procedure.
From start to finish, the history of the Episcopal Church testifies to a body that is not a hierarchy of the sort this court ruling has presumed. To dispossess at least 29 congregations and more than 20,000 worshipers on the basis of such a flawed understanding of history would be a terrible injustice.
The litigation between the Diocese of South Carolina and the Episcopal Church (TEC) has been an important contest over the past five years. Its outcome will determine whether 23,000 citizens of this state will have their freedoms of association and religion affirmed, or if they will be dispossessed of the properties faithfully established for their work of ministry.
The latter outcome would be particularly grievous, given it is possible only because the deciding vote on the state Supreme Court was provided by a justice with membership in the Episcopal Church. That is a clear and massive conflict of interest.
Recently Judge Joseph Anderson set Nov. 6-8 as the dates for mediation of both the state and federal cases. Those meetings in Columbia have the potential to finally bring peace and a fair resolution to all matters in both. That would certainly be a more just outcome than what has been provided so far at the hands of our state Supreme Court.
One can only hope that the high court will respond to the motions for rehearing and recusal, uphold its credibility, and give justice to the Diocese of South Carolina.
When a friend heard that the Episcopal Church is continuing a lawsuit over ownership of church real estate in the Diocese of South Carolina, knowing it could drive 20,000-plus Christians from their meeting places, that person said, “That’s just not Christian.”
I cannot disagree. Apart from the legal arguments, when a fair person weighs the biggest issues, it’s real estate versus unimpeded worship and ministry.
It is hard to see that the Episcopal Church is being Christian in this action.
(CM) Myron Harrington Chimes in on the Anglican/Episcopal Dispute and the Supreme Court in South Carolina
That [SC Supreme Court] decision has been articulated in past editions of this paper so I will not go into the details. Unfathomable and unimaginable, however, is how that decision came about. A travesty of justice has occurred! Judicial integrity was not broken; it was fractured — perhaps beyond — repair by the actions of one justice. We now have a Supreme Court whose integrity, as a whole, must be questioned.
I could accept this decision if it had been properly adjudicated by our Supreme Court with no bias, as they are sworn to do. However, this was not the case, as one of the justices failed to recuse herself because of her deep affiliation and vested interest with one side, to include membership in a body that’s avowed mission has been to destroy the Episcopal Diocese of South Carolina and defrock its bishop. The other sitting justices, if they knew of her ties to The Episcopal Church, should have taken immediate action to remove her. And if not, when they discovered her egregious breach of trust and confidence, they should have acted in good faith to dismiss her opinion or call for a rehearing with justices with no ties to the case.
I am a proud Citadel graduate, a retired Marine Corps Officer, a veteran of Vietnam and Beirut. My life has been about service to my God, country, family and others. Duty, Honor, Respect and Integrity have been my guiding principles.
To see our state’s most respected court have such an obvious breach of the values I stand for and fought for is troubling — not only for the case with which I’m concerned but for their future as the last word in justice and integrity.
The Code of Judicial Conduct still requires recusal.
COLUMBIA, S.C. (October 13, 2017) – Today the Diocese of South Carolina (Diocese) filed our Response, at the Court’s request, to the Amici brief submitted on behalf of Justice Kaye Hearn regarding her actions on the South Carolina Supreme Court in its recent ruling in Appellate Case No. 2015-000622. Her opinion there provided the deciding vote to deprive at least 29 parish churches of their right to properties some have held for over 300 years. Similar to the previous filings on the issue of Justice Hearn’s recusal, 26 attorneys signed this response as well.
Statement by the Rev. Canon Jim Lewis:
“An essential issue before the State Supreme Court in this matter is whether the Judicial Code of Conduct means what it says. If it does, Justice Hearn should and must be recused from any further participation in this case. At a minimum, she should have no part in the Court’s decision whether to rehear this case. Further, if the Court is to defend the due process rights of the Diocese of South Carolina, we likewise believe it should vacate her existing opinion and grant a fresh hearing before a new bench of Justices that is untainted by her failure to recuse herself.”
Quotes from today’s filed Response:
+ Regarding Justice Hearn’s interest in the outcome, the amici brief “simply disregards the evidence provided with the Motion to Recuse.” [p. 4]
+ The Canons of the State Code of Judicial Conduct places “the determination regarding recusal and duty to disclose and recuse on the judge, not the parties.” [p. 8]
+ There are no grounds for Justices Hearn’s continued participation in this case. The amici brief itself makes “no argument that prospective recusal is unavailable and inappropriate in these circumstance.” [p. 10]
Conclusion: “Respectfully, Justice Hearn should recuse herself from hearing the Petition for Rehearing and the Court should vacate her opinion and appoint a Justice to hear the Petition. Failing that, the Court should vacate all of the opinions and order rehearing.” [p. 12]
I write to join with many Christians in South Carolina to express deep concern, shock, and sorrow regarding the recent state Supreme Court decision which attempts to strip titles of 28 churches in the Diocese of South Carolina and award them to the National Episcopal Church. The situation is tragic in terms of its presentation of the church to the world and poses at least three important questions:
1) How can three judges overturn a previous court ruling and 300 years of sacrificial stewardship?
Consider that a number of these parishes existed a century before there was a National Episcopal Church. Consider, too, that Justice Jean Toal is quoted in reference to “the leading opinion in this case,” calling it “nothing less than judicial sanction of the confiscation of church property.”
Also, a careful review will show that a number of the congregations involved did not accede to the Dennis Canon of the national church which concerned ownership.
2) How can such a decision stand in a nation whose Constitution and Bill of Rights guarantee freedom of religion?
Many of the first European settlers came to this country fleeing persecution and seeking a haven where they might have freedom of conscience and religion. They established churches.
For centuries, their descendants and other devoted parishioners have maintained these houses of worship despite fires, floods, earthquakes, wars, pestilence, poverty and hurricanes while also supporting home and world missions. The national church has not borne these expenses. Can a secular court give it ownership?
3) How can confiscation of places of Christian worship where the Bible, the Book of Common Prayer, and articles of religion are upheld be consistent with the teachings of Christ? This is the most important question.
Theological aspects have frequently been neglected by much of the media, but bishops, clergy, and lay people have long been troubled by the national church organization’s apparent departure from basic principles of the faith.
Christians and Jews have been taught that they should love the Lord with all their being and their neighbors as themselves. For Christians, respecting and loving all does not mean forsaking belief in the unique divinity of Jesus Christ and the validity of Scripture. In fact, only by God’s grace can we love and forgive others.
We are taught, too, that there is a higher court and a supreme judge. We come before Him in great humility, acknowledging that we are all in need of mercy. Many of us are praying that God’s will be done, whatever that may be, and that we may be faithful.
Catherine O. Jones….
A World Radio segment–Religious liberty guidance, and the battle over South Carolina’s Episcopal churches
listen to it all. Included are interviews with the Rev. Jeff Miller, the Rev. Canon Jim Lewis and Elizabeth Hagood.
A S Haley Analyzes the Specious Defenses of Judge Kay Hearn’s need not to be Recused from the Anglican/Episcopal Case–Judges Who Are Indifferent to Injustice
Perhaps none of my readers in South Carolina will be surprised to learn that two former colleagues of South Carolina Supreme Court Justice Kaye Hearn, both retired judges who sat with her for many years on that State’s Court of Appeals, have appeared as “friends of the court” (amici curiae) in the Episcopal Church case on her behalf. That case (Protestant Episcopal Church in the Diocese of South Carolina et al. v. The Episcopal Church et al., No. 27731, August 2, 2017) has been the subject of four of my last seven postings here (report of decision, first critical observations re: bias of Justice Hearn, summary of grounds for her disqualification, and summary of grounds for granting a rehearing).
Now come the Hon. William T. Howell and the Hon. H. Samuel Stilwell, retired from the Court of Appeals, to argue to the Justices of the State Supreme Court that (a) the motion to disqualify Justice Hearn comes too late for it to be acted upon, and (b) in any event, no foul has occurred — there has been no violation of due process, because their former colleague did nothing wrong by deciding the case as she did. Oh, and did I mention that the signer (and presumably principal author) of the brief for the amici curiae is Matthew Richardson, who served in the past as a law clerk to Justice Hearn?
In support of (and attached to) this brief are two affidavits. The first is from Rebecca Lovelace, a witness who testified at trial on behalf of those claiming all the properties of the withdrawing parishes, who is a long-time personal friend and fellow parishioner of the Justice and her husband, George Hearn, and who was on the steering committee that organized the appellant Episcopal Church in South Carolina (ECSC). The second affidavit comes from Prof. Gregory B. Adams of the University of South Carolina School of Law, who does not, however, disclose that he himself is a member in good standing of the parish of Good Shepherd in Columbia — which, as a constituent of the Diocese of Upper South Carolina, has remained in ECUSA.
So one would expect to read a thoroughly impartial and unbiased series of legal documents, right? And if that is what you expect, then you might as well stop reading right now.
Earlier, I analogized Justice Hearn’s role in this case to that of a member of a golf club who sees nothing wrong in sitting as judge over a property dispute that results in the transfer to her own club of millions of dollars of real estate titled in the name of a competing golf club. If that analogy holds up, then I will liken the filing of this amicus brief to testimony offered in her support, in a proceeding against the judge to disqualify her for bias, by four members of the judge’s same club. And that is not also bias?
The Rector of Saint Philips, Charleston, writes his Parish about the proposed mediation process in the South Carolina Anglican-Episcopal Dispute
From November 6-8, representatives of the Diocese of South Carolina and the Episcopal Church will be engaged in mediation under the direction of retired federal judge Joseph Anderson in Columbia. Both parties have agreed to mediate all issues currently pending before the State and Federal courts.
This is another step along the way toward resolution, but unlike arbitration, mediation is not binding on either party, and this is no guarantee of a positive outcome for the Diocese. It would be unwise to assume that this will necessarily resolve the litigation or guarantee that we will ultimately prevail. Instead, this is an opportunity for us to engage in fervent prayer. As Christians, we have the great privilege of laying our burdens, fears, and hopes before our Heavenly Father, and I encourage you to do so between now and the conclusion of the mediation on November 8.
Please remember Bishop Lawrence and our legal team as you pray, but also include Bishop Skip Adams and the legal representatives from TEC. It may be difficult to bless our adversaries and pray for those who appear to persecute us, but it is the Christian way. It is our hope that in ALL things Jesus Christ may be glorified, so pray especially that God’s will may be done on earth as it is in heaven, and that the ministry of St. Philip’s and the Diocese of South Carolina may continue unfettered and undeterred.
–The Rev, Jeff Miller is rector, Saint Philip’s, Charleston
Being “given over to the courts”and being “thrown out of the synagogues” (our churches) are some of the “peculiar honors” St. Philip’s and St. Michael’s congregations and others are facing. Jesus said his disciples would face such trials before he returned.
Why did we break away from the Episcopal Church? We had already voted that we supported theologically our bishop’s stand for orthodox theology that has been held by the church for over 2,000 years, come what may with the prevailing winds of the culture.
When the House of Bishops voted overwhelmingly to redefine certain sacraments and to approve new liturgy accordingly, Bishop Mark Lawrence being present wrote his name down in a blank book of the House of Bishops as having a concern over the departure of the Episcopal Church from particular tenets of the faith. He was in communication with the presiding bishop, seeking to work with each other side by side.During what he thought was open communication with the presiding bishop, he was surprised to receive without forewarning a letter from the House of Bishops barring him from his duties as bishop. Because our diocese had already voted to support our bishop come what may, we were out of the Episcopal Church with his barring.
We only recently joined the Anglican Church in North America, comprised of similar congregations who have not buckled to doctrines once considered inconceivable by instructed man. The ghost of every dead and buried heresy does squeak and gibber as on our ghost tours of Charleston.
Certainly there are some “brethren” at Grace and the few other churches that remained with TEC who would not like to see us kicked out of our church properties over freedom of conscience and free exercise of religion, which are unalienable rights to all Americans. As the Charleston poet, Elizabeth Verner Hamilton said, “You’ve got to love your neighbor when you live this close together.”
What we are being found guilty of is remaining in the faith, remaining in the Bible Belt, even in the Holy City’s most historic churches, not breaking away from the “Faith of our Fathers, Holy Faith.”
“We will be true to you till death.”
Laura Wichmann Hipp…
The Diocese of South Carolina filed two motions on September 1 with the State Supreme Court, requesting a rehearing of our case and the recusal of the justice casting the deciding vote. Both are unusual steps and legal counsel for The Episcopal Church (TEC) has now responded to our motions. Because the issues at stake in this case have implications far beyond our Anglican family, they merit public comment.
Ownership of church property
The Diocese of South Carolina and its 54 congregations provide a place of worship for 23,000 faithful members across the Lowcountry of our state. Most of those congregations will lose their place of worship to TEC if the current ruling of the court stands as is. Many of those affected are colonial parishes like St. Philip’s and St. Michael’s whose existence predates TEC by more than 100 years. How can an unincorporated, New York association claim ownership here?
The majority in this case has made multiple legal assertions, among the most problematic of which is that a church body can lay claim to another’s property simply by saying it is so. The General Convention of TEC asserted such a unilateral claim in 1979. The problem with affirming such a claim in South Carolina is that it requires ignoring 300 years of clear legal precedent for how to establish an ownership interest in property.
The well-established legal principal is that the party granting anyone an interest in their property must do so in a clear, unambiguous written form. TEC failed to establish a trust interest in our property, of any sort, that can be recognized under existing S.C. legal precedent. To grant TEC such an interest now is to grant it favored status over the diocese and its parishes, establishing one church body over another. This is inconsistent with opinions of the U.S. Supreme Court that truly “neutral” principles of state law must be applied here as they would in any other case.
If you belong to any religious body, this ruling should concern you. It establishes the precedent that your property interests are not subject to the same rules as everyone else and you can be treated differently. In this particular case, it means any group you are associated with can make a legal claim to your property, simply because they say they have decided they have one. As Justice Kittredge noted in his dissenting opinion on this ruling, “The message is clear for churches in South Carolina that are affiliated in any manner with a national organization and have never lifted a finger to transfer control or ownership of their property — if you think your property ownership is secure, think again.”
COLUMBIA, S.C. (October 4, 2017) – Today the Diocese of South Carolina (Diocese) announced the schedule for mediation of the ongoing litigation with The Episcopal Church (TEC).
Statement by the Rev. Canon Jim Lewis:
“In a pre-mediation meeting today with Judge Joseph Anderson, it was determined that mediation would be conducted November 6-8 in Columbia, South Carolina. Both State and Federal cases will be addressed by the mediation. Confidentiality will be expected from all parties concerning these discussions.”
Read it all and please note all the linked material.
COLUMBIA, S.C. (September 25, 2017) – Today the Diocese of South Carolina (Diocese) filed our Replies, to the Return by The Episcopal Church (TEC) to our motions for recusal and rehearing in the South Carolina Supreme Court, regarding its recent ruling in Appellate Case No. 2015-000622.
Statement by the Rev. Canon Jim Lewis:
“Today’s filings by the Diocese of South Carolina address the property law issues at the heart of this case. TEC failed to establish a trust interest in property, of any sort, that can be recognized under 300 years of existing South Carolina legal precedent. And to claim such an interest now is to grant TEC favored status against the Diocese and its parishes, establishing one church body over another. This is inconsistent with opinions of the United States Supreme Court that truly “neutral” principles of state law must be applied as they would be in any other case.
Further, the timeliness of our request for recusal is not an issue before an appellate court. The public confidence in and the credibility of the Court is! The most effective way to assure both is the recusal of Justice Hearn and the vacating of her opinion. A ruling free from conflict of interest is not a right that can be waived.”
Read it all as well as the cited documents and those listed below the article.
What appeared to be a dispute over property quickly implicated First Amendment rights and the Establishment Clause, when the South Carolina Supreme Court applied different standards and rules to the Episcopal Church for establishing a trust in property than those governing secular organizations.
The court, in applying different and more lenient standards to the Episcopal Church, appeared to favor one denomination over another, according to Alan Runyan, an attorney representing the diocese.
“According to this decision, the Supreme Court of South Carolina has created a special rule which operates here to the benefit of the Episcopal Church, a New York unincorporated association, and to the punishment of the parish churches in the diocese of South Carolina, many of whom predate the Episcopal Church and the United States of America,” Runyan told TheDCNF. “Because, in the exercise of their protected rights to their religious beliefs and to associate with those they choose to associate with, they successfully withdrew from the Episcopal Church, only to have applied to them a rule that would not apply to the U.S. Chamber of Commerce.”
“And I say that because in South Carolina there are very precise ways for how you create a trust in property,” Runyan said. “In this case, the [South Carolina] Supreme Court majority expressly stated that, in fact, the Episcopal Church did not have to follow those rules. It didn’t have to follow the same rules that the U.S. Chamber of Commerce would have to follow to create a trust interest in the property of a local chamber of commerce that had joined it. And it is in that respect that this is an egregious violation of the right to freedom of religion and the right to associate with others who share your religious beliefs because, in the exercise of those same rights, a secular organization would not have been punished.”
Lewis told TheDCNF that the implications of the court’s ruling, especially as they pertain to the Establishment Clause, posed a grave threat to the religious community at large.
“Part of our argument is that’s a gross violation of the First Amendment, that the court here has established a different set of rules, a different precedent for how church property ownership is determined than what would be used for a secular nonprofit,” Lewis said. “That’s essentially establishment of religion. There are all kinds of problems with that that should be of concern certainly to anybody in the religious community.”
Imagine you are in court getting divorced. You may be angry, relieved, or bereft of hope. Nevertheless, you expect fair treatment.
It happens that you are married to a judge.
Wait — the judge hearing your case is your spouse?
Now the judge has ruled in her own favor on their own, personal case. Is this justice? Who cares?
Think about that for a minute. This happened when S.C. State Supreme Court Justice Kaye Hearn ruled in a case despite her membership in the activist Episcopal Forum, and even though it directly involved her own church and disregarded established precedent of the S.C. Supreme Court.
When my wife and I formally complained in writing to the committee on Judicial Conduct on Sept. 28, 2015 about the conflict of interest in accordance with Canons 2 and 3 of the South Carolina Code of Judicial Ethics, we were told this was not a problem.
Now that she has ruled, it is a problem on display for all.
When you love God, you love justice. Blessed are those who are persecuted for his sake.
John B. Kerrison, M.D….
Today The Episcopal Church (TEC) filed their reply, as requested by the Court, to the motions by the Diocese of South Carolina and 28 parish churches for recusal and rehearing in the South Carolina Supreme Court, regarding its recent ruling in Appellate Case No. 2015-000622.
On behalf of the Diocese of South Carolina, Rev. Canon Jim Lewis issued the following statement:
“Today’s filing by The Episcopal Church argues in essence, that the Diocese and its parishes waived their right to recusal, by not requesting it earlier, and that the Constitutional issues raised in their motions are negligible or mistaken. The facts in this ruling, as it presently stands however, will not yield to such arguments. Justice Hearn’s bias and conflict of interest is clear to any impartial observer. The Constitutional issues for Freedom of Religion remain. As our petition for rehearing stated: “These are serious issues for Respondents, Appellants and for all religious organizations in South Carolina. This Court should grant a rehearing.” That continues to be our hope and Constitutional expectation from the Court.”
The Diocese is also providing the following background information and details:
• In 2012, the Diocese of South Carolina, along with 50 of its congregations voted by an 80% margin to disassociate from The Episcopal Church. In a complicated and sharply divided ruling consisting of five separate opinions, the S.C. Supreme Court appeared to rule on August 2 this year that parishes which had “acceded” to the national church are subject to a trust interest in their property by (TEC).
• The Constitutional due process requirements of the 14th Amendment are clear. No member of government should make decisions in matters in which they have a vested interest in the outcome. The Justice in this ruling who provided the deciding vote is a member of a TEC parish, Diocese and its national church. Under South Carolina law, that Justice is a legal party to this litigation. The bodies to which this Justice belongs as a member would be the beneficiaries of a nearly $500 million property windfall if this ruling stands. That is a massive conflict of interest. And it is the responsibility of the judge, under the South Carolina Code of Judicial Conduct, to reveal that issue, not for a party in the case to challenge the propriety of their actions.
• The expert affidavit testimonies of Nathan M. Crystal, Professor and Adjunct Professor of Ethics at the University of South Carolina and NYU Schools of Law and Lawrence J. Fox, Professor of Ethics at Yale University are unanimous in their conclusions. The due process rights of the Diocese of South Carolina have been violated by these actions and the only appropriate response is for this Justice to be recused from further participation in this case and their opinion vacated. As Lawrence Fox observes in his analysis, “This is not a close case.” The violations of due process here are not subtle. They are profound….
I am outraged by the recent S.C. Supreme Court decision that strips the title of 28 churches in the Diocese of South Carolina and awards them to the national Episcopal Church. As acting Justice Jean Toal wrote in a dissent: “The First Amendment prohibits civil courts from resolving church property disputes on the basis of religious doctrine and practice.”
Rehearing is required, flat out, because respondents’ due process rights to a fair and impartial tribunal were grossly violated. But rehearing would be required in any event because the bias injected into the proceedings by Justice Hearn tainted not only her conclusions, but those of Acting Justice Pleicones and of Chief Justice Beatty, as well.
In a nutshell, the fault exposed by the petition for rehearing is this: there is no 3-2 majority, or any majority, of the Court that is united in favor of any reasoning for any result that is dispositive of the entire case. When a court has failed properly to dispose of the whole case before it, it must grant a rehearing to clarify what it meant by its original decision.
Let me restate that observation, in terms a lay person can understand. To have an effective decision from a court of law in which a panel of multiple justices participates, there has to be a majority of the participating justices who each concur in (agree with) the result that necessarily follows from that concurrence. And in this South Carolina decision, an analysis of the separate opinions shows conclusively that while three justices out of five may concur in one given result, they differ fatally in what process gets them to that result.
With no clear majority agreeing on the approach the Court (through its supposed majority) is laying out, the picture is the same as if three bettors at roulette won money when the ball landed on Red 34, because the first bet on “red”, the second bet on “even”, and the third bet on “34”. There is consensus only in result, but not in how you get there. And basic due process requires courts to explicate their reasoning for reaching a given result.
In a demonstration that tops all that came before, the motion makes its most convincing argument for Justice Hearn’s disqualification at pp. 11-12. ECUSA itself has for a long time declared in its national canons that as an unincorporated association of dioceses, its members are individuals who have been baptized in the Church (Canon I.17.1 [a], cited in n. 1 on p. 11). Justice Hearn fits that description, so ECUSA itself regards her as one of its own members.
Likewise, ECSC stated in discovery that “its members are persons” (ibid.), and so Justice Hearn, who belongs to a parish that recognizes the authority of ECSC and its Provisional Bishop, is a member of that body as well.
But the kicker is that under South Carolina law, all members of unincorporated associations are deemed to be parties to an action in the name of the association — and both ECUSA and ECSC are unincorporated associations. Ergo, Justice Hearn is a party defendant, and could be found personally liable if ECSC ends up with a money judgment against it and no means to pay it. As a party defendant, she has no right to sit in judgment of her own case (just as she has no inherent right to rule on her own disqualification by participating in deciding the motion). See the motion at pp. 11-12, and 24.)
Two Experts in Legal Ethics State that Justice Hearn Should Have Recused Herself
It is no answer to all of the foregoing to say that it was the responsibility of Bishop Lawrence’s attorneys to have requested Justice Hearn to withdraw from participation in the case. The South Carolina Judicial Canons required her to make a full disclosure on the record of all of the relevant facts before proceeding at all. Not only that, once she made such a disclosure, the Canons forbid parties from waiving disqualification on grounds of personal involvement, so that she would have had to step down once she revealed the extent of her and her husband’s personal involvement (see motion, pp. 13-19).
In further support of their motion, Bishop Lawrence’s attorneys submitted the affidavits of two recognized experts in the field of legal ethics.
Jim Lewis, Canon to the Ordinary, Writes the Diocese of South Carolina about the Motions Filed with the SC Supreme Court
September 1, 2017
Today the Diocese filed two motions with the South Carolina Supreme Court;
- A Motion to Recuse, addressing the participation of Justice Kaye Hearn, and
- A Motion for Rehearing, asking the court to reconsider multiple important issues in the current ruling.
The respective motions and the expert opinions can be found here:
The press release filed today is available here.
We continue to believe what we have asserted from the beginning. With the freedom of association comes the freedom of disassociation. In the pursuit of the constitutionally protected right to the free exercise of our religious beliefs we disassociated from the Episcopal Church. It should not be the case that this protected right causes the loss of our property when it would not do so if we were not a religious organization.
It is incomprehensible that a parish like St. Philip’s in Charleston, that was worshipping here 100 years before TEC even existed, can have that place of worship taken from them and given to an unincorporated New York association who contributed nothing to its building or preservation. This is a principle worth fighting for.
In Christ’s service,
–The Rev. Jim Lewis is Caon to the Ordinary, Diocese of South Carolina
Citing significant departures from both state and federal precedents, the Diocese of South Carolina and 29 parish churches today filed a motion for rehearing in the South Carolina Supreme Court regarding its recent ruling in Appellate Case No. 2015-000622. In 2012, the Diocese of South Carolina, along with 50 of its congregations voted to disassociate from The Episcopal Church. In a complicated and sharply divided ruling consisting of five separate opinions, the S.C. Supreme Court ruled on August 2 this year that parishes which had “acceded” to the national church’s ‘Dennis canon’ are subject to a trust interest in their property by The Episcopal Church (TEC). Only eight congregations were judged to have full rights to retain their property.
In a decision that partly reversed the February 2015 Circuit Court ruling of Judge Diane Goodstein, the Supreme Court significantly changed court precedents in multiple areas and divested the property rights of at least 28 congregations and over 20,000 church members.
Grounds for Rehearing
While there are multiple legal issues in the ruling that merit rehearing, the most crucial are possibly the constitutional ones controlling cases of religious property. As stated in the conclusion to the petition: “The majority has fashioned a neutral principles standard for religious organizations under South Carolina property, trust and corporate law that admittedly would not be applied to secular organizations. It then applied it to religious organizations today in a fashion it did not do 8 years ago involving the same issues between the Plaintiff Diocese, The Episcopal Church and a parish church. It does so when no appellant asked the trial court, either during trial or post trial, to apply such a standard. As a result, the majority would transfer the real and personal property of South Carolina religious organizations, many of whom preexisted The Episcopal Church and the United States, to a New York religious organization. This establishment of one religion over another impacts the choices these South Carolina religious organizations (and those associated with them) made in the free exercise of their religion. They chose to disassociate, exercising their right of association under the United States and South Carolina Constitutions which this Court has recognized. Yet, according to the majority, that constitutionally protected decision, requires a massive transfer of centuries old real and personal property when it would not be required for a secular South Carolina organization.”
The petition concluded: “These are serious issues for Respondents, Appellants and for all religious organizations in South Carolina. This Court should grant a rehearing.”
A Summary of recent posts on the August 2017 South Carolina Supreme Court Decision involving “five different, strongly-held opinions”
— ABC Religion&Ethics (@ABCReligion) August 30, 2017
Careful blog readers should make sure there have read and understood them all. I have been asked why I have not linked to secular media reports or other stories, and the answer is I would be happy to if they were accurate but they have not been–KSH.