TEC joins South Carolina trademarks case in federal court

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For clarity: The Episcopal Church in South Carolina is the continuing diocese of the national church. The Diocese of South Carolina is the breakaway diocese which is now part of ACNA. The Episcopal Church is the denomination to which the Episcopal Church in South Carolina belongs.

An announcement from The Episcopal Church in South Carolina:

Episcopal Church joins federal lawsuit
8/25/2017

A federal judge has granted The Episcopal Church’s motion to intervene in a lawsuit over false-advertising and related claims against the bishop of a breakaway group that left the Church in 2012.

The federal case, known as vonRosenberg v. Lawrence, has been assigned to U.S. District Court Judge Richard Gergel, and currently is scheduled to proceed to trial in March 2018. Judge Gergel was assigned the case after the death of Judge C. Weston Houck in July.

The lawsuit was filed in March 2013, a few months after Mark Lawrence and a breakaway group announced they were leaving The Episcopal Church. The suit involves a claim of false advertising under the federal Lanham Act. At that time, Bishop Charles vonRosenberg was the only bishop recognized by The Episcopal Church and the Anglican Communion as bishop of the Diocese of South Carolina. By continuing to represent himself as bishop of the diocese, Mark Lawrence is committing false advertising, the lawsuit says.

Bishop vonRosenberg retired in 2016, and his successor, Bishop Skip Adams, was added as a plaintiff in the case earlier this year.

This month, The Episcopal Church filed a motion to join the case as a plaintiff, saying it has an interest in the litigation because of Bishop Lawrence’s “misuse of marks owned by the Church.”

On Thursday, Judge Gergel ruled in favor of the motion. Bishop Lawrence’s attorneys had argued the motion should be denied, in part because it wasn’t timely. Since the onset of the litigation in 2013, Lawrence’s attorneys twice moved to delay the case. Both times, Bishop vonRosenberg appealed to the US Court of Appeals for the 4th Circuit, which agreed and sent the case back to federal court in Charleston to be heard.

“Defendant’s vehement objections to the timing of the motion for leave to intervene must be taken with a grain of salt,” Judge Gergel wrote. “The four years of delay preceding his answer to the complaint occurred on Defendant’s motion. He cannot now claim he is prejudiced by the delay he requested.”

The federal case is key to resolving trademark issues that were not addressed by the state courts in the lawsuit that the breakaway group, calling itself the “Diocese of South Carolina,” filed against The Episcopal Church and its local diocese in 2013. That case went to the South Carolina Supreme Court, which ruled August 2 in favor of The Episcopal Church and its diocese, The Episcopal Church in South Carolina.

On the issue of service marks, the five state Supreme Court justices were divided, and the opinions noted that these should be determined in the pending federal proceeding.

Attorneys for all parties attended a scheduling hearing Thursday with Judge Gergel in preparation for trial in 2018.

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Cynthia Katsarelis
Member

I loved the Episcopal churches in Blowing Rock and Boone. While on staff with a professional orchestra in NC, I was hired to be on the faculty at Appalachian State U in Boone. Lovely area and churches. They were pretty liberal in the late 1990's. Nice place to have a legacy.

I wish that SC could have worked things out better. The schismatics give the impression that they took everything to make the statement about being the "real" Anglican church. And every flows from seeking that affirmation in the courts, etc.

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Prof Christopher Seitz
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Prof Christopher Seitz

I gather Jan Karon moved out of TEC into a different worship community. The churches of my father's era in WNC are gone now. This was all pre ASU of course and 'keep Asheville weird' sentiment. Selah.

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Ann Fontaine
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She loved nostalgia-ville -- not surprised she left TEC - the reality of church is not some idealized Fr. Tim.

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Prof Christopher Seitz
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Prof Christopher Seitz

I was born in Blowing Rock and left in the mid fifties. Her fame was later. I never read her books. But my point was simply to say: St Mary's Blowing Rock, and the Diocese in general, is a very diff

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Prof Christopher Seitz
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Prof Christopher Seitz

My father served as a mountain mission worker when in seminary, at Valle Crucis. He was later the first year-round priest at Blowing Rock, Boone and Beaver Creek. Domestic Mission was parcelled out to the more high-church seminarians and Foreign mission to more evangelical ones, in this era of expansion E and W of the Mississippi. The excerpt below is typical of the period.

"Valle Crucis, where one of our two conference centers is located, began as a missionary outpost in 1842. In 1894, a resolution was adopted in the Convention of the Diocese of North Carolina that the Western part of the State be set off and offered to the General Church as a Missionary District. The following year, in November 1895, the first Convention of the District of Asheville was held at Trinity Church in Asheville. In 1922, after all the requirements had been fulfilled, a petition from the Jurisdiction of Asheville to become the Diocese of Western North Carolina was presented at the General Convention of The Episcopal Church. It was accepted on September 12, 1922."

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Prof Christopher Seitz
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Prof Christopher Seitz

Dear Mr Powers, You are likely correct that the situation would be judged anomalous and without any obvious historical precedent (missionary diocese, etc), and so if ECinSC loses, most likely some accommodation would be created.

I suppose one can speak of the unusual entity in scare quotes as a "continuing diocese" but of course Episcopal Church in SC is in fact the name. There is no diocese in the traditional sense: the bishop is appointed, not elected; it is using an unusual nomenclature out of necessity/strategy; it has no diocesan structure; it is suing in the hope it can become the Diocese which presently continues to exist. In court it cannot refer to itself as a Diocese and does not.

My point is chiefly to underscore that unlike synodical polity, TEC is at ground a diocesan polity. I can recall when the region in the western part of NC was a missionary district. When it was strong enough to form into a diocese, it did so. Then it was accepted into (the then) PECUSA by GC. Dioceses have canons, conventions, own property, have copyrighted seals, can even have corp sole Bishops as in LA. Most provinces in the AC are not organized in this way. The USA was slowly developed east to west, as states emerged. TEC tracked along this model.

My own view is that TEC ought to eliminate all grey areas in respect of diocesan polity so as to create a more streamlined, top-down system. But this is a difficult thing to pull off and would likely be resisted by Bishops. It just isn't in the DNA. A synodical polity as in the CofE would be logistically difficult. Many parishioners identify most readily with their diocese and their Bishop. But TEC is going through growing pains related to shifts in power and authority. At the same time it is struggling with dramatic population declines. The next HOB meeting will doubtless have to think through the recent LA events.

Grace and peace.

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Paul Powers
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Paul Powers

There is a continuing TEC diocese in lower South Carolina. Even if it ends up having to adopt a new name, it'll still be the same diocese, and there will be no need to petition General Convention for admission as a new diocese.

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Prof Christopher Seitz
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Prof Christopher Seitz

You are correct that if they win this suit they will not have to petition. The way new dioceses become parts of TEC is by petitioning. History books can show you this. Diocese of Texas, etc. Typically they were missionary dioceses in round one, then they formed into dioceses. They they requested to affiliate. Unique to the cultural reality of the US in the New World (cf Europe).

TEC could have a synodical government -- no diocesan canons. No diocesan conventions. No diocesan officers. No property owned by the Diocese. Meet nationally as a church 3 times a year. Most provinces operate this way. They have archbishops, synods, no diocesan canons, conventions, property, and so forth.

I believe it would be preferable in some ways, but it is not TEC's history.

The reason there is a suit being joined is that the matter is contested. So TEC is suing to seize the name and titles. As I said, I am not sure how a diocese would surrender these except by diocesan convention vote. Or by losing a lawsuit. Bon dimanche, grace and peace.

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Cynthia Katsarelis
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That's Cynthia Katsarelis. I don't know why sometimes my full name comes up and sometimes doesn't...

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Cynthia Katsarelis
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Peace and blessings and healing on you and your wife, Christopher Seitz. May your father rest in peace and rise in glory. Peace.

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Bill Ghrist
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Bill Ghrist

Prof Seitz, your entire argument is based upon the assumption that a diocese of the Episcopal Church has an identity independent of the Episcopal Church and is therefore free to leave. But this is in reality the specific point being contested by the legal action. It is the contention of the Episcopal Church (correctly so, in my opinion) that a diocese is by definition a part of the Episcopal Church. If the officers and members choose to leave the Episcopal Church, they may call themselves a diocese if they wish, but they are at that point NOT the entity that was a part of the Episcopal Church, i.e. they are not what you refer to as "the original diocese" and do not have a legal right to use the name or property of the Episcopal diocese. The members who remain in the Episcopal Church do not have to "formally start up a diocese" and "petition the GC" because the original diocese is still in effect part of the Episcopal Church, albeit temporarily without any officers. We had a similar situation here in Pittsburgh, except that one member of the Standing Committee remained in the Episcopal Church. The ACNA diocese here called itself the Episcopal Diocese of Pittsburgh, but the courts eventually ruled that the entity referred to as the Episcopal Diocese of Pittsburgh (in a legal agreement that Bishop Duncan had signed prior to the split) is in fact the continuing Episcopal Church diocese and not the ACNA diocese.

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Professor Christopher Seitz
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Professor Christopher Seitz

Dear Donald, good friend of many years. I am no longer in TEC, retiring soon, but as you know, three generations of my family have served proudly. I am in the Diocese in Europe of the CofE.

My priest father passed away in January and his years as chaplain at Christ School, having previously been a student, were significant ones for him. His fellow Headmaster Cup recipient was Henry Hudson, whose wife died just recently. You will know them both well.

Christ School was full of Charleston folk and I have so enjoyed my times there, including a decade running ecumenical conferences in Charleston. I know you have been part of the new TEC direction and not in the EDSC, but rather in a different diocese. You were always a kind and gracious host. Thank you.

From time to time I wonder what +ML was supposed to do. It is not in his gift or role to hand over the name and titles of EDSC. That would have to be done as a Diocese.

Do you believe that the EDSC was prepared as a body to hand over these, through orderly conventions? If not, then just what is a 'rightful identity'? I find the idea difficult to follow.

As my wife has recently survived a lung transplant and we are trying to return to routines, I have no business commenting on this. I simply have retained so many close friends in EDSC it saddens me beyond words. Selah.

I am sure others will carry on.

My prayer now in this place where I serve is that the CofE can find a way to avoid what has happened over the past decade in TEC. It will not be easy.

Blessings on your life and ministry, in Christ. EDSC and TEC will find a way forward. I do not believe anything written above is factually in error. But then facts are often irrelevant when tensions are this have. May God have mercy on all involved.

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(The Rev.) Donald Allston Fishburne, D.Min.
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(The Rev.) Donald Allston Fishburne, D.Min.

My Dear Brother Chris,

Greetings, love, peace.

Having been baptized and ordained in St. Philip's Episcopal Church, Charleston (and having served at St. Michael's, as did my ancestor The Rev. Henry Purcell before, during and after the Revolutionary War), I respectfully agree with nothing you have written here, save this: "All this is extremely tragic." You are right.

None of this need have happened.

As a member of the Episcopal Church I too will be in fasting and prayer on August 30 -- that the Episcopal Church be made whole, and that its rightful identity will continue to be recognized not only by the SC Supreme Court but also in Federal Court.

Pax, Shalom,

Donald

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Prof Christopher Seitz
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Prof Christopher Seitz

I do not want to get into this and am trying to extricate myself from TEC affairs, but

1. it is not entirely accurate to call the Episcopal Church in SC a 'diocese';
2. TEC is the one suing in this case, following the similar initiative of von Rosenberg, not EDSC;
3. it is suing precisely because it does not want formally to start up a diocese, as that would be to acknowledge its status is somewhat invented/provisional
4. to become a diocese it would have to petition the GC and that is what ECinSC does not want to do;
5. ECinSC hopes to win and strip the name away and claim it, coming alongside the recent 3-2 ruling re: properties;
6. One supposes that if it does not succeed we would have an odd situation in which the name is retained by the original diocese, and ECinSC constructs a different identity/name and then petitions to be a diocese.

People refer to the deal TEC offered as being rejected, but of course it required EDSC to surrender its identity and name. The vast proportion of the original diocese did not want to do that. They would have had to become something other than what they were and had been.

People may believe that should have been easy to do. They did not.

All this is extremely tragic. TEC could have created the "Diocese of Lower SC" or allowed the Diocese of Upper SC to absorb those parishes that EDSC was prepared to let go. Instead one imagines the best outcome now is an extremely expensive phyrric victory, lots of clergy out on the street without housing, and struggling newly minted parishes.

I know people believe this is the right way forward and applaud TEC's "win." It is hard to consider much of this a cause for rejoicing. Hopefully the Church of England will learn from all this and find a different way. It will not be easy.

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