Category : TEC Conflicts: South Carolina
Dear Fellow Clergy,
The Bishop is calling for a clergy day this coming Wednesday, August 9 beginning at 1:30 p.m. in St. Paul’s Church in Summerville. Legal counsel will be present to discuss the ruling and its possible implications. We request that all who are able make it a priority to attend….
While we released a statement to the press this afternoon, we want you to further know that our legal team is planning a motion for a rehearing. There are multiple strong grounds for making that request and good reason to be hopeful about that outcome. In the meantime, please appreciate that legal council is still reviewing the implications for what is a very complicated ruling.
While this ruling is disheartening, we are a long way from the conclusion of this fight for the Diocese and its Parishes. Please keep the Diocese and its leadership in your prayers as they discern appropriate next steps.
In Christ’s service,
(The Rev.) Canon Jim Lewis
August 7, 2017
The Standing Committee of the Diocese of South Carolina, having met together with our bishop, The Rt. Rev. Mark J. Lawrence, in Charleston this day, sends to all of our brothers and sisters of the diocese our love and our greetings in the name of Jesus Christ. We are so profoundly thankful for all who have fasted and prayed for our diocese and our Standing Committee during the past week from across South Carolina, throughout the Anglican Church in North America, and among all the faithful in global Anglicanism.
We have spent this time together in prayer and discussion regarding the decision by the South Carolina Supreme Court last Wednesday. In light of the conflicting opinions issued by the court, we met with the legal counsel for our diocese and have approved a strategy on how we go forward seeking clarity. We want you to know this: the legal process continues. We will be filing a motion for a rehearing from the Supreme Court, the deadline for which is September 1st. We are convinced there are compelling reasons to make this motion. There will be other avenues along with and following that action.
Finally, while we cannot tell you what tomorrow brings, we want to reiterate three things that you already know. First, again, the legal process continues. Second, we are stronger together. Third, we will continue in all circumstances our God-given mandate of making biblical Anglicans for a global age. Know that we love you, our brothers and sisters in Christ, and that we remain,
Yours in Christ Jesus,
The Standing Committee of the Diocese of South Carolina
The Rev. David Thurlow, President
The Very Rev. Craige Borrett
The Rev. Karl Burns, Vice-President
The Very Rev. Peet Dickinson
The Rev. David Dubay
The Rev. Marcus Kaiser
Mr. Alonso Galvan
Mr. Gerry Graves
Mrs. Susan McDuffie, Secretary
Mr. Foster Smith
Mrs. Anne Walton
Mr. Brandt Shelbourne
What the Rector of Redeemer, Orangeburg, South Carolina wrote his parish about the recent SC Supreme Court Ruling
Dear Members Of Our Redeemer Family,I would guess that by now you’ve heard that the SC Supreme Court issued their ruling on the appeal of the 2014 Circuit Court opinion that awarded the Diocese of South Carolina full rights to continue as the Diocese and gave full ownership of the churches properties to the individual churches. According to the ruling which you can download by tapping or clicking here, it looks like we may have lost some of what we gained under the 2014 Circuit Court opinion.As I understand it, part of the 2014 ruling has been reversed by a majority of justices, and another part remains as it because there was a 2-2 tie on that part. It appears that we [in Orangeburg] lost the right to keep our buildings.I’m writing today to ask you to fear not. I assure you, we are going to be alright. I’m asking you not to start “what-iffing” and please don’t start anticipating what we are going to do from here on out. We really don’t have enough information yet to even be anxious. Additionally, I have a personal rule of life I follow which goes like this: “Never make policy out of something that hasn’t yet happened.”Last night I got an email from Canon Jim Lewis saying that our legal team will appeal. Here’s part of that letter from Canon Lewis:We want you to further know that our legal team is planning a motion for a rehearing. There are multiple strong grounds for making that request and good reason to be hopeful about that outcome. In the meantime, please appreciate that legal council is still reviewing the implications for what is a very complicated ruling.
While this ruling is disheartening, we are a long way from the conclusion of this fight for the Diocese and its Parishes. Please keep the Diocese and its leadership in your prayers as they discern appropriate next steps.Additionally, I would ask you to stay away from gossip on the subject. Facebook and the various church blogs are often little more than gossip. At best they are one person’s opinion. Opinions are just that – opinions; they are not fact. The fact is, the sky is not falling. Another thing you might want to do is talk with Pinckney Thompson. Pinckney led the charge for us in 2014, and I believe that he’s got some great wisdom on the issue.In any event, God is still God, and I know He’s in charge of our future. Whatever may transpire, we are going to be alright. That much you can take to the bank. All we need to be doing at this point is praying for God to take care of it, because the Lord knows we surely can’t.My friend Chris Warner wrote these words to his congregation:Let me remind you; you don’t have to worry. Worry is optional misery! This court ruling is a situation that you cannot control. But you can control the amount you worry.If you have a relationship with God through Jesus Christ, you know the One who created your future. His promises about your future give life, not worry.We clergy will have a special meeting next Wednesday, August 9 to hear from our lawyers and leadership. As soon as I get more information – reliable information – I’ll send it to you. Again – Please – Fear Not. This is not a time to worry. This is the time to pray. And pray with the assurance that God’s got it, and it’s going to turn out just fine. Thanks.God bless you, and See you Sunday!–The Rev. John Burwell
Today, thousands of Christians around the world are holding you, the congregations of the diocese, as well as our clergy and bishop in prayer. Even more specifically, yesterday Anglicans on this continent were lifting us in constant prayer. As you may know, we recently voted as a diocese to affiliate with the Anglican Church in North America, and this summer their Provincial Assembly joyfully received us as full members therein. What a comfort it is to know that our Archbishop, the Most Reverend Foley Beach, asked the bishops, clergy and laity of the ACNA to pray and fast yesterday on our behalf.
Many of those praying and fasting have in the past walked away from their church buildings, buildings they built and maintained, and in some cases, where their families worshiped for centuries. Some left by choice; others after years of litigation. I do not mention the latter, however, as if the legal issues in our case are fully resolved. They most certainly are not, though they are clearly challenging. Rather, I want you to know the sort of Christians who are praying for us; and while holding us in prayer, many are fasting. They have paid a price to follow their Lord. We are part of a provincial body of Anglican Christians and they are walking this hard road with us. Their fellowship at such a time is greatly comforting to me and I hope it is for you.
I also want to tell you what our next steps are. First, this Monday, August 7, the Standing Committee and I will meet with our lead legal counsel, Mr. Alan Runyan. I assure you that our legal team is looking at the various options before us. Second, this Wednesday I will meet with the deans of the various diocesan deaneries, and that afternoon, Mr. Runyan, Canon Lewis and I will meet with all the clergy of the diocese. Please keep us in your prayers. Many important decisions are before us and we want to be faithful to our Lord Jesus Christ and walk in step with the Holy Spirit.
Read it all (his emphasis).
The decision of the South Carolina Supreme Court in the matter of the ACNA Diocese of South Carolina vs. the TEC Diocese of South Carolina (Heard September 23, 2015 and filed August 2, 2017) appears to be such a case. The net effect of this case seems to be the transfer of the property of 29 congregations from the ACNA Diocese of South Carolina to TEC. Ultimately this could mean the displacement of thousands of families from the place where they have worshiped for generations. It could mean the loss of all the ACNA Diocese of South Carolina offices, the bishops residence and more.
The legal effect is to overturn the South Carolina Supreme Court decision in All Saints Parish, Waccamaw v Diocese 385 S.C. 428 (2009) that neither the then Episcopal Diocese of South Carolina nor the national church (by the Dennis Canon) can create a trust in favor of themselves in any church in South Carolina unless they already have an express property interest in that church. This 2009 decision was based on long settled common law principles of trusts in South Carolina law. The legal effect of the Court’s August 2 decision is to reinterpret the facts of this case de novo, and by bare majority of 3-2 to reinstate the validity of the Dennis Canon by turning the “neutral principles” approach to church property disputes (see Jones v. Wolf , 443 U.S. 595 (1979)) into a “deference to internal hierarchical church law,” approach—turning “neutral principles on its head.” As Justice Kittredge concluded in his opinion (dissenting in part and concurring in part): “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….”
I am reminded constantly of the example of The Falls Church Anglican in Virginia. Under years of costly litigation and appeals, they planted three churches in the DC Beltway (Arlington, Alexandria and Vienna) and one on the outskirts of Northern VA, in Winchester. All are thriving. TFC lost their buildings, but their congregation grew even as they gave away hundreds to these church plants! Now they have a location and a building that exceeds what they had before, as they are growing in mission and evangelism where God has planted them.
How tragic it would be if litigation and appeals took our eyes off God and the things that delight him—especially reaching those who do not yet know the transforming love of Jesus Christ.
In her concurring opinion, Justice Hearn went out of her way to castigate Bishop Lawrence and the role he played as chief pastor of his Diocese — ecclesiastical matters which, as her colleagues pointed out, had no business being addressed in a secular judicial opinion. In doing so, she only advanced, and acted as a spokesperson in black robes for, the sectarian interests of the Episcopal Forum to which she still (presumably — the organization no longer publishes the names of its members) belongs. At the same time, she contradicted her own precept that South Carolina courts should stay out of Episcopal Church matters and defer to its “ecclesiastical determinations.”
Further, according to the minutes, Justice Hearn’s husband, George, was one of the duly designated delegates to the special convention of ECSC called in January 2013 by ECUSA’s Presiding Bishop to replace Bishop Lawrence. That convention elected Charles G. vonRosenberg as Provisional Bishop of ECSC, who promptly brought suit against Bishop Lawrence in federal court and countersued in the State court action — eventually seeking the recovery of all the properties of each of the 36 separate parishes involved in that litigation. George Hearn also was a deputy to the first regular convention of ECSC held in March 2013.
One would think that Justice Hearn, given her membership in the organization that initiated the disciplinary proceedings against Bishop Lawrence, and given her husband’s role in enabling the litigation now before her, might have considered recusing herself from the 2015 appeal by her own diocese (ECSC) and church (ECUSA) to her Court, which placed directly at issue the actions of Bishop Lawrence and his Diocese that removed them from ECUSA. But one would be wrong. She not only stayed on the case, but she displayed a disgraceful bias in her own church’s favor during the oral arguments in September 2015.
Fast forward now to the current year. The appeal by Justice Hearn’s church and diocese has been languishing for 15 months because the five justices have been unable to form a consensus on how to resolve it, and are still circulating draft opinions. At some point in the process (perhaps just a few months ago, or perhaps it was right after the oral argument in September 2015), it has become clear that there are two votes (Acting Justice Pleicones, and, naturally, Justice Hearn herself) to apply ECUSA’s Dennis Canon full bore to the withdrawn parishes.
— Kendall Harmon (@KendallHarmon6) August 3, 2017
A sharply divided court reverses portions of the lower court ruling
COLUMBIA, S.C. (August 2, 2017) – In a 77 page opinion, the South Carolina Supreme Court today reversed portions of an earlier lower court ruling. In February 2015, circuit court Judge Diane Goodstein ruled that the Diocese of South Carolina, its trustees and the 50 parishes — representing 80 percent of the members — that disassociated with the Diocese successfully withdrew from The Episcopal Church (TEC) in 2012, taking all their property, including churches, symbols and other assets. The ruling was the result of a three-week trial in 2014.
That court found that “the Constitution and Canons of TEC have no provision which states that a member diocese cannot voluntarily withdraw its membership.” This ruling found that had there been such a provision, it would have violated the diocese’s “constitutionally protected right” to freedom of association. “With the freedom to associate goes its corollary, the freedom to disassociate,” Judge Goodstein wrote.
In a complicated ruling consisting of five separate opinions, the S.C. Supreme Court today ruled that parishes which had “acceded” to the national church’s ‘Dennis canon’ are subject to a trust interest on their property by the denomination. Eight congregations that had not so acceded were judged to have full rights to retain their property.
The dissenting justices expressed concern regarding the long term implications of this decision. Former Chief Justice Jean Toal stated that the court should have relied on “over three hundred years of settled trust and property law… I believe the effect of the majority’s decision is to strip a title owner of its property…” on the basis of actions that do not create a trust interest under South Carolina law. In concurring with Justice Toal, Justice Kittredge observed of other church properties where there is affiliation with a national organization, based on this ruling, “if you think your property ownership is secure, think again.”
This current litigation became necessary when TEC attempted to wrongly remove Bishop Lawrence, and the Diocese, in response, elected to disassociate from TEC. At that time a small group of TEC loyalists who had been preparing for this attempted removal began an intentional campaign of using the Diocesan Seal and other service marks of the Diocese. They began to function as if they were the Diocese of South Carolina. To maintain its identity required that the Diocese defend that identity.
Lead counsel for the Diocese, Alan Runyan, said the lead opinion and concurring’s decision is inconsistent with South Carolina and long-standing United States Supreme Court precedent involving church property disputes. Legal counsel continues to review a lengthy and complicated ruling comprised of five separate opinions.
In a divided decision, the trial court’s order is reversed as to twenty-nine parishes and affirmed as to the remaining parishes. The trial court’s intellectual property ruling is affirmed by a vote of 2-2, with one justice declining to reach the issue.
Here are the seven parishes (and one land trust) which, by a 3-2 vote, were not subject to the Dennis Canon: Christ the King, Waccamaw; St. Matthews Church, Darlington; St. Andrews Church-Mt. Pleasant Land Trust; St. Paul’s Episcopal Church of Conway; The Episcopal Church of the Parish of Prince George Winyah, Georgetown; the Parish of St. Andrew, Mt. Pleasant; St. John’s Episcopal Church of Florence; and St. Matthias Episcopal Church, Summerton.
Note that the opinions are confusing as to how many “congregations” — seven or eight — managed to escape the Dennis Canon, by never acceding in their articles or bylaws to the Constitution and Canons of ECUSA. The reason is that one of the eight is not a congregation, but apparently a trust that holds title to church property.
The opinions show a bitterly divided Court that could not agree even upon the basic framework by which to decide the case (what the Court calls “the standard of review”). I put a lot of the blame for this divisiveness upon Justice Hearn, about whose blatant bias I wrote at the time of the oral argument. Her opinion concurring with Justice Pleicones might as well have been written by David Booth Beers….
I will take comments on this submitted by email only to KSHarmon[at]mindspring[dot]com.
Proverbs 1:33 (VOICE)
But those who listen to me now will live under divine protection; they can rest knowing they are out of harm’s way.
Our Father in heaven,
We thank You that You are a covenant God, not a capricious God. We thank You for the many promises of Holy Scripture. We claim this promise for the Diocese of South Carolina. Amen.
Psalm 5:11-12 (NLT)
But let all who take refuge in you rejoice;
let them sing joyful praises forever.
Spread your protection over them,
that all who love your name may be filled with joy.
For you bless the godly, O Lord;
you surround them with your shield of love.
Our Father in heaven,
Spread Your protection over the congregations and property of the Diocese of South Carolina. Fill them with joy and bless them. We declare, They are surrounded by Your shield of love. Amen.
“Despite the tendency of new congregations to grow, the impact of these congregations on the level of attendance in the Episcopal Church is relatively small ””simply because there are so few of them.”
Take the time to read through it all.
That left Chief Justice Toal, who despite all the tortuous arguments stuck to basic legal principles and analysis: a trust needs a settlor to be created, and the beneficiary of a trust is perfectly within his rights to quitclaim back to the settlor all of his supposed interest in the trust. (There was thus no “breach of the Dennnis Canon” when Bishop Lawrence signed individual quitclaim deeds to his parishes, on behalf of the Diocese as beneficiary of any trust interest that arguably may still have existed following the All Saints Waccamaw decision.) And South Carolina religious corporations are free to amend their governing documents — including a complete change in their charitable purpose — as long as they comply with the formalities required by South Carolina law.
To this observer, it seemed as though the Justices had not discussed the case with each other beforehand. And it also looked as though the Chief Justice had taken on the responsibility of writing an opinion in the case — since she was the one most weighed down with case files and briefs. But whether her opinion will be the majority one remains to be seen. I believe she has the confidence of Justice Beatty, who followed her before. And she may have Judge Kittredge in her camp, as well.
But both he and Justice Costa Pleicones seemed to have difficulty following the ins and outs of the arguments — thanks to the constant interjections by Justice Hearn on behalf of the Church of which she is an active member. She practically monopolized the argument with long speeches (not questions) that would have sounded more appropriate had they come from ECUSA’s attorneys. The resulting final impression of Mark Lawrence and his Diocese having had a rough time in the Court is almost entirely, in my estimation, due to the attempts by Justice Hearn to derail the case by returning South Carolina to the days of deference, as ECUSA argued in its briefs.
Whether her unprofessional and entirely partial tactics will succeed is a question that will have to await the Court’s opinion, which could be months away. I shall have much more to say about those tactics in my following post.
Heading up the panel hearing the case will be Chief Justice Jean Hoefer Toal, who in that same position authored the Court’s unanimous 2009 opinion in the case of All Saints Waccamaw v. Episcopal Church, which I quoted and analyzed in this earlier post. Also serving on the panel will be Associate Justice Donald W. Beatty, who joined in the Waccamaw opinion. It is not known yet whether any of the other sitting Justices have recused themselves (two of them did so in the Waccamaw case); the fifth, Justice Kaye Hearn, assumed her seat on the Court after the arguments in the 2009 case.
Chief Justice Toal, whose religion is Roman Catholic, is no stranger to the concept of what makes a church “hierarchical.” In her opinion in the Waccamaw case, Justice Toal noted that South Carolina Courts are required to resolve church property disputes using “neutral principles of law” whenever possible. They may defer only to “the highest religious judicatories” when they have properly decided an issue “as to religious law, principle, doctrine, discipline, custom, and administration.” It should be noted that in her written opinion filed last January, Circuit Judge Diane Goodstein expressly found that there were no such bodies in the Episcopal Church (USA) that had outside jurisdiction over either the Diocese or any of its parishes.