TEC’s essential legal arguments can be distilled down to one proposition: TEC claims to be a “hierarchical” church, with complete, top-down control of the entire organization.
“There are multiple and significant problems with these assertions in this case as detailed in this brief,” said the Rev. Jim Lewis, Canon to the Ordinary. “First, TEC’s organizational structure is irrelevant to this case. The U.S. Supreme Court has ruled clearly and repeatedly that in property matters of this sort courts not only can, but should decide them based upon ‘neutral principles of law’ if that can resolve all the issues. That means questions of ownership can be settled on the same basis as in any secular case.”
An example of this point is the 2009 decision of the All Saints case by the South Carolina Supreme Court. As in any litigation involving churches, doctrinal issues are often involved. However, if the court can decide the matter applying the customary laws of property ownership, it may do so. That occurred in All Saints.
and see also Diocese of South Carolina’s PR on TEC’s ”˜Spurious’ Offer to Settle
The reply brief says that the Church of England parishes outside England before 1776 were part of the Diocese of London. That is not historically accurate. The Bishops of London by custom and sometimes by letters patent exercised authority to ordain and to license clergy to serve outside England, but the congregations outside England (in Scotland, America, India, etc.) formed part of the royal ecclesiastical patrimony and were never part of a Church of England diocese. The royal governors by authority of their appointment letters exercised the authority over marriage licenses and probate of wills that in England was exercised by the ecclesiastical courts. Jurisdiction over clergy offences that in England were dealt with in church courts was disputed by colonial legislatures and governors. Tiffany’s book is the best source on this, but there are other articles on the subject – and I regret I no longer have access to them. Tom Rightmyer, Asheville, NC
Elves, Please change the headline. I know it doesn’t mean much to most people, but I have been confused for days because the Diocese didn’t file a Reply Brief. They filed the Respondnts’ Breif. The Relpy Brief will be filed by the Appellant (rump diocese and TEC) in “reply” to DSC’s brief. These are legal terms used in SC appellate practice. Accuracy ought to count for something even in blog journalism.
#2, David, Certainly the elves can change it here. Don’t blame them for the headline. That is taken from the original article. The person who wrote the article is not a lawyer and probably does not realize the confusion created by the headline. Always best to keep things simple. Just say the Diocese’s brief has been filed with the SC Supreme Court.
TEC/the new TEC diocese have issued an Appeal and so become the Appellants. The Diocese of South Carolina and others are the Respondents to this Appeal and have replied or responded to the Appeal. That brief in reply is by the Respondents, not the Appellants although the brief itself as a reply belongs to and is filed by the Respondents and so would be the Respondents’ Brief, not the Appellants’ Brief. The brief thus is referred to as a brief in reply or response or a reply brief or response brief; although as far as who it is filed on behalf of it would be the possession of the Respondents and so be titled a Respondents’ Brief being a brief filed by or on behalf of the Respondents.
The Elves are not bound to use legal terminology outside of Court if it helps readers understand that this is the Diocese’s and others’ reply or response to the Appeal.
The Elves are content with the headline, but thank commenters for ensuring that readers are absolutely clear to whom the reply refers.