Friday, September 20, 2019

Fallout from the South Carolina Travesty Continues

This blog has almost (but not quite) ceased its coverage of things that are wrong with the Episcopal Church (USA), or ECUSA, as I choose to dub it. The subject has become too desultory; the conduct of ECUSA and its leadership in wreaking havoc upon good and faithful Christians is beneath contempt, let alone notice. Out of respect and friendship for my many long-standing friends in South Carolina and Texas, however, I will continue to offer commentary on the events in those States as they continue to unfold.

Yesterday, in South Carolina, the federal district court there published its 73-page decision and ruling on the various trademark cases that were before it.  The court essentially invalidated the rights of Bishop Lawrence and his Diocese to their traditional names and marks, which they had enjoyed for the previous two and a half centuries. District Judge Gergel found that he was constrained to make this ruling because of a single isolated obiter dictum in a single (one out of five) opinion by the hopelessly fractured justices of the South Carolina Supreme Court in the earlier state-law case.

As documented extensively on this site, there was no single controlling opinion in that case.  Two justices wanted to overrule the holding in All Saints Parish of Waccamaw that ECUSA's Dennis Canon was not self-effecting in South Carolina (i.e., the Dennis Canon by itself could not impose a trust on the property of ECUSA parishes without their written consent). But two votes out of five do not a majority make, so the holding in All Saints Waccamaw still stands.

A third justice (Chief Justice Beatty) held that the Dennis Canon could create a trust on parish property if the parish itself had consented to be bound by that canon in writing.  Having no idea of just how many South Carolina parishes had done so (because the evidence of individual parish consents -- such as may have existed -- was not in the record before the Supreme Court), the justices simply lifted a number out of ECUSA's brief to that court, and duly assumed that 29 parishes had "acceded" in writing to the Dennis Canon, and so were bound by the trust it imposed. (See the decision, at n. 38.)

That made the third and deciding vote for the overturning of the holding of the trial court in Dorchester County to the contrary.  But whereas the trial court had looked at all of the so-called accession documents, and had declared them ineffective to constitute any form of consent to be bound by the Dennis Canon, that evidence had not been included in the record on appeal, because neither side was challenging the trial court's finding in that regard.  The bare and unsupported assertion in ECUSA's brief was simply argument -- not evidence -- to the contrary. Yet the Chief Justice's unquestioning adoption of ECUSA's unsupported number somehow became the law of the case: twenty-nine parishes had supposedly "acceded" in writing to the Canon, while another seven had not: therefore, the latter seven could hold on to their property, while the others could not.

Along his destructive way, Chief Justice Beatty tossed out another firebomb with his aside that "[i]n my view, the disassociated diocese [of Bishop Lawrence] can make no claim to being the successor to the Protestant Episcopal Church in the Diocese of South Carolina" (op., 421 S.C. 229, at 251 n. 29). He offered no legal reasoning to support his opinion. He did not concur with the views of Justices Hearn and Pleicones that the state court was bound by ECUSA's recognition of its replacement diocese and could not examine that issue under neutral principles of law. (Moreover, once Justice Hearn recused herself from the case after the fact, her views on the merits of the case deserved no deference whatsoever. So in actuality, Justice Gergel could have found there were only two justices out of four who ruled on who succeeded whom, and thus there was no clear majority on the state law issue of successorship.)

Justice Gergel, however, declined to consider any effect of Justice Hearn's belated recusal on the weight to be given to her opinion on the case. It was enough for him to deem that the "votes" of three justices had tied his hands on that question, so that he could not consider it afresh. In so concluding, Judge Gergel fell into the trap of confusing the secular succession of legal entities under the civil law with the ecclesiastical succession of religious entities in a denomination.

No one disputes, or could dispute, that the newly organized Episcopal Church in South Carolina (ECSC), which was organized for the first time at a meeting of its delegates in January 2013 and immediately recognized as a diocese by ECUSA without going through any of the formalities required by Article V of ECUSA's Constitution, was regarded by ECUSA as a successor to the Diocese of Bishop Lawrence which had earlier voted to dissociate from General Convention.  The vacancy left by that withdrawal obviously required a successor, and so ECSC was it.

But viewed in secular legal terms, the Diocese of Bishop Lawrence had its own continuity of existence.  It was still (under South Carolina secular law) the same unincorporated association of clergy and parishes after it voted to withdraw that it was before that vote -- it had the same bishop, the same headquarters, telephone number and address, the same employees and records: nothing had changed except for its affiliation with ECUSA.

And most notably, it still owned and possessed the same name, brands and marks as it had before its withdrawal.  Those were not given to it by ECUSA, but invented and trademarked by that Diocese on its own, as its own property.  Yet thanks to the aside by Justice Beatty in a footnote, the civil law question of legal successorship becomes subsumed under an ecclesiastical question which no one would dispute.

Or, stated another way: from an ecclesiastical law point of view, no one would take issue with Chief Justice Beatty's assertion. The last thing Bishop Lawrence's diocese wanted was to be seen as continuing as a member diocese of the apostate ECUSA. But from a civil law point of view, Justice Beatty's claim is simply wrong on its face.  An entity whose existence is recognized under South Carolina secular law does not cease to exist, or become some new entity altogether, simply because it changes its religious affiliation.

To readers of this blog, I apologize for seeming to harp on the same point again and again. The civil Courts in San Joaquin, Pittsburgh, Fort Worth (the Court of Appeal, not the Texas Supreme Court) and now South Carolina have one by one each succumbed to this confounding of ecclesiastical and secular law -- led there in each case by the misleading and deliberately confusing arguments of ECUSA's legal teams. The reason I am not blogging so much anymore on these subjects is that it is too dispiriting to see judges make the same mistake again and again and again, to ECUSA's benefit.