As the Episcopal Diocese of South Carolina seeks mediation and a possible rehearing regarding its breakaway efforts from the national Episcopal Church, the following may be of interest to lay observers. It’s certainly of interest to me, a lifelong St. Philips' parishioner. But admittedly these are the talking points I’d be interested in further pursuing in terms of my own bias as the Diocese restates its case.
The S.C. Supreme Court first took a stand in this ongoing legal battle in 2009 when it ruled that All Saints Waccamaw rather than the national church had title to its property. That decision (as expressed by then Chief Justice Jean Toal) stated:
“We hold that neither the 2000 Notice nor the Dennis Canon (which says Episcopal church properties are held in trust for the national church) has any legal effect on title to the All Saints congregation’s property. A trust ‘may be created by either declaration of trust or by transfer of property…’ (Dreher v. Dreher, 2006.) It is an axiomatic principle of law that a person or entity must hold title to property in order to declare that it is held in trust for the benefit of another or transfer legal title to one person for the benefit of another.”
By 2014 the national church’s effort to claim the property of all the Diocese breakaway churches had been rejected by Circuit Court Judge Diane Goodstein and was being appealed to the state’s high court.
The high court’s unusually sharp disagreements — reflected in five separate opinions — continues to be the talk of judicial circles. For the most part, Judge Goodstein’s opinion on behalf of the breakaway churches was overturned, with the lead opinion written by Acting Justice Costa Pleicones, now retired, with concurrence by Justice Kay Hearn.
Acting Justice Toal, now retired, voiced a strongly worded dissent to Pleicones' conclusions while the other two justices dissented in part and concurred in part. The mixed result allowed seven of the churches to follow the All Saints Waccamaw precedent and keep their real property while 29 others were told their properties now belong to the national church.
In a dissent portion of his opinion, Chief Justice Donald Beatty — citing a number of precedents — had this to say:
“…the Dennis Canon, by itself, does not have the force and effect to transfer ownership of property as it is not the ‘legally cognizable form.’ …. While the Dennis Canon may use the word ‘trust,’ this word alone does not unequivocally convey an intention to transfer ownership of property to the national church or create an express or constructive trust.
“Yet, The Episcopal Church (TEC) argues that the parishes’ accession to the Dennis Canon created the trust. Assuming that each parish acceded in writing, I would agree. In my view, the Dennis Canon had no effect until acceded to in writing by the individual parishes.
“Thus, in contrast to the majority, I would find that the parishes that did not expressly accede to the Dennis Canon cannot be divested of their property…”
Justice John W. Kittredge observed that, “The national church acknowledged to this Court that only some of the 36 local churches involved in this litigation ‘made express promises in their governing documents to comply with the national church’s rules’ after the national adopted the 1979 Dennis Canon. This obviously makes an issue out of the churches that did not make such promises.”
Acting Justice Toal put her strongly worded conclusion that all of the breakaway churches should retain their properties this way: “I would rely on over 300 years of settled trust and property law in South Carolina to declare title to these disputed properties in the plaintiffs’ (the Diocese’s) favor, as I believe the effect of the majority’s decision is to strip a title owner of its property and give it to an organization with which the property owner has no affiliation, relying on documents and practices that do not create a trust under SC law… In my view, the result stemming from the majority’s various decisions is a distinct departure from well-established SC law and legal precedents, a departure which appears to be driven by a sole purpose: reaching a desired result in this case…The lead opinion in this case is nothing less than judicial sanction of the confiscation of church property masquerading as an attempt to promulgate a new deference rule for determining title in this matter.”
For those who might be interested in reading it, the Petition for Rehearing filed on Sept. 1 by various breakaway churches and the Diocese argues that the high court’s ruling is erroneous because, among other things, the Dennis Canon does not create a trust. Furthermore, even if it did, there are numerous instances where no language exists that would suggest accession to the national church’s canons.
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.