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Getting up to speed with the Episcopal-Anglican legal battle

For both sides, The Episcopal Church schism has been heartbreaking and traumatic. Families have been divided, historic sanctuaries denied to those who feel ostracized, friendships strained and faith challenged.

Since early 2013, when the local bishop and three dozen parishes sued the national church, the ensuing legal and ecclesiastical battle has raised broad First Amendment implications and dealt with social issues faced by almost every American.

And then there is the property, which includes historic church buildings and valuable oceanfront real estate that help define the Lowcountry landscape. What will become of it?

Here are summaries of recent developments, current status and some of the big concerns as the two sides pursue the final rounds of legal volleys.

At stake

The  property in dispute is worth at least $500 million, though given the nature of the buildings, their use is limited and upkeep costly. Camp St. Christopher on Seabrook Island and a large majority of parishes were claimed by Bishop Mark Lawrence and his diocese, which left the national church but retained the name, “The Protestant Episcopal Church in the Diocese of South Carolina” and its seal.

Although local congregations shoulder the financial burden of building construction and maintenance, the rules of The Episcopal Church state that dioceses and parishes hold all property in trust; it’s all ultimately “owned” by the national church.

Anglicanism relies on something called bonds of affection, the spiritual glue that keeps different parts of the Anglican Communion together. To be “in communion” means to adhere to general principles set forth by the Archbishop of Canterbury. The friction produced by conflicts between “progressive” and “orthodox” Anglicans, here and elsewhere, has frayed these bonds and diminished shared affections, threatening the integrity of Anglicanism everywhere.

Who should claim to be part of “the Diocese of South Carolina”? Identity also is at stake. The historic parishes located in the Charleston area before the founding of the United States were part of The Church of England in the New World, overseen by the bishop of London. When the first General Convention of The Episcopal Church was convened in 1785, South Carolina delegates attended and soon organized one of nine founding dioceses of the new enterprise.

The Episcopal Church has long asserted that a diocese is mostly a geographic designation, a “district” of sorts governed by a bishop in which affiliated parishes operate. The church has argued, therefore, that dioceses per se cannot leave the church, only people can.

But in 2012, the Diocese of South Carolina voted to disassociate from the national church after revising its governing documents and reorganizing its corporate status. Its officials argued that it could do so since the diocese predated the formation of the national church and since it no longer acceded to the church’s laws. At question was the autonomy and religious freedom of the local organization.

The group retained the name and the property it used. The minority of Episcopalians left behind reorganized their congregations, established a new cathedral and came up with a new name: The Episcopal Church in South Carolina.

Legal issues

The diocese sued The Episcopal Church claiming, essentially, identity theft. The case first was heard in South Carolina circuit court by Judge Diane Goodstein, whose ruling relied on corporate, property and trust law (often referred to as "neutral principles"), giving little weight to freedom of religion principles that have empowered church institutions to govern themselves.

Her decision was largely overturned on Aug. 2, when state Supreme Court justices decided that civil law did not necessarily trump the First Amendment.

Among the many issues raised in the litigation, two big questions came to the fore: Does the First Amendment guarantee the right of religious organizations to decide their own destiny irrespective of prior affiliation or previous commitment, or does the First Amendment guarantee the right of a hierarchical church such as The Episcopal Church (or Catholic Church or Presbyterian Church) to govern itself according to its own rules?

“Religious freedom in these cherished, sacred spaces dating back to 1680 will be denied, and these properties taken away,” wrote the Rev. Jeff Miller, rector of St. Philip’s Church, in an op-ed column published in The Post and Courier on Sept. 16. “This freedom will be denied, not because tens of thousands of parishioners have changed their beliefs, but rather because they have not. Members of St. Philip’s and the other Diocesan congregations adhere to the faith of their fathers and grandfathers, of great-grandfathers and great-great-grandfathers, the historic faith of Christians as practiced for 2,000 years.”

The Episcopal Church has a different view of religious freedom.

“The First Amendment prevents civil authorities from interfering in church government,” it stated in its Sept. 18 legal filing.

Some context

The Dennis Canon was adopted in 1979, when a majority of Episcopal delegates, including those from South Carolina, voted for it. This law is at the crux of the current dispute and states that dioceses and parishes hold their property in trust for The Episcopal Church.

The canon is based on the notion that the church is a hierarchical institution. To be consecrated a bishop in The Episcopal Church, one must promise to uphold the constitution and canons of the church. Bishop Lawrence did so when elected in 2007.

But officials in the Diocese of South Carolina (and in several other dioceses) were increasingly unhappy with what they considered the political correctness and the liberalization of The Episcopal Church. As the polarization over doctrinal and governance issues worsened, diocese officials distanced themselves from the church. 

They criticized changes that enfranchised gay, lesbian and transgender members. They faulted Presiding Bishop Katharine Jefferts Schori (head of the national church) for what they perceived to be her equivocation regarding the supremacy of Christ. They rejected, in Lawrence’s words, “the false gospel of indiscriminate inclusivity,” preferring to uphold orthodox Anglicanism. They worried that orthodox voices in the church were being marginalized and ignored.

They also resented what they considered the national church’s overreach into local affairs, and became especially concerned when, as a result of the diocese’s process of disassociation, the church sought to discipline Lawrence by suspending and then removing him. It was this effort to punish the bishop that prompted him and most parishes in the diocese to make their final break with the church.

Supreme Court ruling

After more than two years of hearings and deliberation, the S.C. Supreme Court issued five distinct and differing opinions, three of which concluded that The Episcopal Church was hierarchical, the Dennis Canon was valid church law, and the breakaway diocese and its parishes were mostly subject to that law. Civil law did not necessarily override church law, and 29 of the properties therefore should be returned to The Episcopal Church, the court ruled.

The court's 77-page set of opinions came more than two years after hearing arguments. Now-retired Chief Justice Costa Pleicones wrote in the lead opinion that he would reverse the entire trial court order, which allowed parishes that left the national church to take with them their parish properties, the diocesan name and its identifying marks. Justice Kaye Hearn fully concurred.

Two justices, Jean Toal and John W. Kittredge, sided with the disassociated diocese, preferring to apply neutral principles of law to the case. Chief Justice Donald W. Beatty was the swing vote.

“While I agree The Episcopal Church is hierarchical, I disagree with the analysis and much of the result reached by the majority,” he wrote. “Instead, applying neutral principles of law, I would find those parishes that did not expressly accede to the Dennis Canon should retain ownership of the disputed real and personal property.” That meant seven parishes and a land trust could remain with the breakaway group; the rest would return to The Episcopal Church.

The intellectual property issue was left unresolved, leaving it to a federal judge to decide.

Motion to rehear

The disassociated diocese has asked the Supreme Court for a rehearing.

The diocese objected to the court’s failure to adhere to the “neutral principles standard” in which South Carolina property, trust and corporate law is applied, resulting in the forfeiture of South Carolina properties to a New York-based religious organization (The Episcopal Church).

“The 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,” the diocese stated in its petition. “They chose to disassociate, exercising their right of association under the United States and South Carolina Constitutions which this Court has recognized.”

In a response to the petition for rehearing, The Episcopal Church disagreed.

“The breakaways have left The Episcopal Church. They may not claim gifts to or assets of the associated Diocese of the Church,” its filing said.

The disassociated diocese then restated and expanded its arguments in favor of a “neutral principles” reading of the law.

Motion to recuse

The breakaway diocese also asked that Justice Kaye Hearn be recused from the case, alleging a conflict of interest. The diocese presented “evidence of bias,” including her membership in the Episcopal Forum, a group loyal to The Episcopal Church; her public airing of views favorable to The Episcopal Church; and her assistance in helping to organize a congregation after the majority in her parish severed ties with the national church.

“The case was important to Justice Hearn, and she and her husband were actively involved in the debate of the issues and were leaders in developing a new parish after leaving their prior one,” the motion states. “Over several years, Justice Hearn developed opinions, advocated for these opinions, and took action based on the outcomes of decisions central to this case.”

The Episcopal Church responded by arguing that the request was “untimely,” partly because the issue wasn't raised before Hearn heard the case.

“Justice Hearn’s opinion is legally sound and follows the overwhelming number of other jurisdictions,” the church responded. “Her religious beliefs and those of her husband are not grounds for recusal. Respondents knew she was an Episcopalian from the beginning yet they waited until they lost to raise the issue and they are now asking for a re-do. This is an abuse of the judicial system.”

The diocese responded: “There is no statute or judicial rule under South Carolina law mandating the time in which a motion to recuse must be filed.”

Amici Curiae brief

Meanwhile, retired South Carolina judges William T. Howell and H. Samuel Stilwell submitted a friend-of-the-court brief in support of Hearn.

In a lengthy argument, they said the motion to disqualify Hearn should be denied because a recusal motion should be filed at the "first opportunity after discovery of the disqualifying facts, but certainly it cannot be filed at the very last opportunity before this Court.” The diocese, they said, knew of Hearn’s religious affiliation at least since 2014.

In any case, they continued, it doesn’t matter because Hearn didn’t violate state law or judicial canons.

“Without actual evidence supporting their legal arguments, Movants go to great lengths to weave a tale of bias and direct interest as harrowing justification for filing this motion, while proclaiming for themselves good faith and restoration of integrity to the process.”

Nathan M. Crystal, a professor of ethics at the University of South Carolina and New York University law schools, and Lawrence J. Fox, professor of ethics at Yale University, submitted affidavits on behalf of the disassociated diocese arguing that Hearn's alleged conflicts of interest violated the diocese's due process rights.

What's next

The parties await the Supreme Court’s decision whether to rehear the case and whether to disqualify Hearn.

A separate federal case, vonRosenberg v. Lawrence, is pending in U.S. District Court and is scheduled to proceed in March before Judge Richard Gergel. This case will decide the question over intellectual property: who has the right to the name, seal and marks that the disassociated diocese retained.

Bishop Charles vonRosenberg retired in 2016; his successor, Bishop Skip Adams, was added as a plaintiff in the case. In March, the Diocese of South Carolina joined the Anglican Church in North America, which had been formed in 2009 as an orthodox alternative to The Episcopal Church.

On Aug. 30, Gergel assigned the case to a colleague for mediation.

The two sides consented to mediation, which won't disrupt the federal lawsuit or change the state Supreme Court decision.

"The aim is not to alter that decision, but to seek an agreement about how best to implement it," The Episcopal Church in South Carolina wrote in an email to its members. Nevertheless, the two parties now have a chance to strike a deal.

CORRECTION: The number of founding dioceses of The Episcopal Church was nine. The number of South Carolina parishes that initially left The Episcopal Church was 50; today 36 are named in current litigation.

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