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Oral arguments heard in SC property case

Oral arguments heard in SC property case

Oral arguments were held yesterday in Columbia, S.C., and though one cannot determine how the justices will rule based on their questions, the justices seemed open to the idea of reversing previous judgments that went against the Episcopal Church.  It should be noted that the makeup of the court has changed considerably in the three years since the SC Supreme Court ruled in favor of allowing a Pawley’s Island parish to leave the Episcopal Church.

From the Post and Courier;

In spirited exchanges, several justices questioned the breakaway group’s attorney, Alan Runyan, and took issue with the trial judge’s refusal to allow evidence examining whether The Episcopal Church is a hierarchical religious body that could forbid a bishop or an entire diocese from leaving without its permission.

When the case went to trial in summer 2014, Circuit Judge Diane Goodstein refused to allow evidence related to whether the national church is a hierarchical body. However, she then ruled it is congregational in its governing structure with power flowing from the bottom up and that the parishes and diocese had the right to leave at will.

“This case was tried in a rather one-sided way on this issue,” Chief Justice Jean Hoefer Toal said. But if the case boils down to property rights issues rather than church governance, “What difference does it make?” she asked.

“You have to know what type of animal you’re wrestling,” responded Columbia attorney Blake Hewitt, who argued for The Episcopal Church and area parishes that remain a part of it.

Justice Kaye G. Hearn said if the national church is hierarchical, it already has ruled on who is the rightful bishop of its diocese.

“The national church has chosen (Charles) vonRosenberg as bishop” of its local diocese, Hearn said.

Several justices also noted Lawrence promised allegiance to the national church during his controversial election “while he had his fingers crossed behind his back,” Hewitt said.

Earlier this year, the continuing diocese offered a resolution of the dispute.  In that proposed settlement, parishes which voted to leave would keep their property, but all diocesan properties and assets (estimated to be worth $500 million), including the diocesan camp, would be returned to the Episcopal Church.  The Lawrence-led group refused that offer, preferring to take their chances in court, claiming that organizations (such as parishes and dioceses) have the same rights of association as individuals.

The State Newspaper also has coverage on yesterday’s oral arguments.  Links to each side’s case are available below

PDF Final Brief of Appellants
PDF Final Brief of Respondents

Video of the entire oral argument is available (the embedded title reflects the views of the maker of the video):


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Prof Christopher Seitz

Now she could be pushing hard and will turn around and rule for Lawrence…

‘Could be’ Yes. Or No.

Time to let God decide what He wants for His Body the Church.

Jeremy Bates

My take is that Lawrence, Runyon, and others saw the Waccamaw case as a green light for dissenters to leave and take property with them.

The author of the Waccamaw decision, Chief Justice Toal, however, is about to tell us that this is not what the Waccamaw case means.

Whether she will do that for the majority is an open question. The other four justices may want to go further than the Chief, in ruling for Appellants.

Justice Hearn, in particular, may write to emphasize that to require national churches to adopt trust language that would comply with the trust law of all 50 states would be so burdensome as to violate the First Amendment. That is the underlying constitutional issue here. Interestingly, Hewitt made it sound as though he does not want that issue reached.

At least the Chief noted the contradiction between the Lawrence group’s insistence on apostolic succession and its current contention that TEC is a Congregational church. At that, the Chief was raising her eyebrows by about a mile. Chief Justice Toal gets the point that any church that calls itself “episcopal” is not congregational.

Judge Houck might even be back in business at the federal level. A major rationale for his stay order–the progress of the state-court case–may be contradicted if Judge Goodstein is reversed.

Dan Ennis

Dr. Seitz, I don’t want this conversation to devolve into contradictions, but your advising others to listen to Justice Toal could be self applied. Justice Toal said two things very clearly:

1. Judge Goodstein should not have prevented TEC lawyers from presenting evidence that Lawrence violated his oath as a TEC Bishop, and if Lawrence did indeed violate that oath it is unclear that he had any authority over the Diocese at the moment he was deposed. Hearn starts that rabbit, but Toal chases it.

2. The All Saints case (upon which she served) is “very different” and not a precedent. She repeats “very different” over and over to get Lawrencite Attorney Runyon not stop citing All Saints. She gets annoyed and shuts Runyon down.

It’s all there starting at 33:01 of the video. For all the complaining about Justice Hearn in the pro-Lawrence blogosphere, it was Justice Toal who just knocked two legs out from under the Lawrencite case.

Now she could be pushing hard and will turn around and rule for Lawrence, but there is no way Runyon and company want to have to defend Lawrence’s record regarding what he said to get the assents he needed and what he did once he got his bishopric.

Dan Ennis

For all their attention on Justice Hearn, the Lawrencites really ought to worry about Justice Toal. As Roman Catholic, she know what a hierarchical church looks like, and it was Toal who asked (incredulously), “How was the finding made that this is a congregational church?”

Prof Christopher Seitz

Not at all. As a good RC she knows a polity with proper trust arrangements. She was no partisan for TEC in the Waccamaw ruling.

Ortbal in Illinois and the TX Supremes are on the new wave of those justices who have begun to see that if there is any hierarchy in TEC, it is only at the Diocesan level.

The RCC has a genuine hierarchy when it comes to property. You will never get that from TEC Bishops, including liberal ones.

Prof Christopher Seitz

Mr Bates,

I suggest you take a day and read the decisions of the TX Supreme Court or Illinois. They will explain why the trust law in TX and ILL does not permit the reading you would hope was true.

Or listen to Chief Justice Toal carefully.

Jeremy Bates

The RC solution is that “By virtue of his primacy of governance, the Roman Pontiff is the supreme administrator and steward of all ecclesiastical goods.” (Canon 1273.)

This is why RC bishops can decide to shut parishes down, against the will of the parishioners. Indeed we will never have that in TEC.

But in Jones v. Wolf, the Supreme Court invited hierarchical churches to create rights of reversion, rights of trust, or express trusts.

By definition, a trust is when the person with titular ownership, and the person with beneficial ownership, are not the same.

Thus the Dennis Canon states, “All real and personal property held by or for the benefit of any Parish, Mission, or Congregation is held in trust for this Church [i.e., TEC] and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons.”

Dr. Seitz, are you a First Amendment lawyer? If not, what qualifies you to discern what is a “proper” trust arrangement, under Jones v. Wolf?

In particular, if you concede that Canon 1273 is a “proper” trust, then why isn’t TEC’s canon a proper trust too?

Paul Powers

Asking for a recusal is risky because it might alienate the judge, which can be a problem is she declines to recuse herself. I assume the attorneys for the +Lawrence diocese decided it wasn’t worth the risk.

Prof Christopher Seitz


Jeremy Bates

Yes, moving for recusal is risky. But did the Lawrencians ever think they were going to get Justice Hearn’s vote?

If her vote was unlikely from the get-go, then why not make the motion?

If her vote was thought to be possible, then why all the she-should-have-recused-herself outcry now?

It sounds to me as though the Lawrencians are desperately looking for someone else to blame, before the Supreme Court rules against them.

Dan Ennis

I am a member and former Senior Warden of St. Anne’s Episcopal in Conway, SC, the church Justice Hearn attends.

I don’t speak for her and have never spoken to her about her role in this case. I post to correct some misconceptions.

1. Being a “member” of The Episcopal Forum is irrelevant. If you attended any meetings of that group you were a “member.” I attended some of their meetings, and I disagreed with some of their tactics, but overall they were right–Bishop Lawrence was going to leave TEC and take property with him. Moderates like me who wanted to believe Lawrence’s promises to stay in communion were suckers. At any rate, anyone who ever attended a Forum meeting is a “member,” even if the meeting was in 2004. That was the Forum’s strategy to show that there was widespread support for TEC in South Carolina, even as Bishop Lawrence was deriding opposition as a tiny group of extremists. I assume I’m still listed as a member, even though it has been at least five years since I’ve attended a Forum meeting.

2. Many members of St. Anne’s (where my and Justice Hearn’s family are members) have been vocal in their opposition to continued litigation, and the parish has nothing to gain from either a victory or defeat in the current case. The founders of St. Anne’s who left St. Paul’s, Conway (now a Lawrencite “Anglican” Church) started a new church in a rented building with not one item of St. Paul’s property. We chose a new name (and were received into the Diocese of South Carolina as a new mission) precisely to avoid association with property litigation. I suspect that we’re a little inconvenient to our own diocese, since we sometimes get out of line and call for reconciliation instead of continued appeals (luckily vonRosenberg tolerates dissent far better than Lawrence did!).

And, of course, it is a parish full of people of varying views, including some whose parents are buried on property now controlled by Bishop Lawrence. I post to point out that just being a member of a Diocese of South Carolina parish doesn’t guarantee a certain point of view regarding the church property dispute.

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