On Lawsuits and Losses

Phil Ashey looks at the South Carolina decision in light of Psalm 37

In his book The Contemporary Christian, John Stott writes that a follower of Christ should have a Bible in one hand and a newspaper in the other. Without both, he or she is unarmed. With the newspaper only, you have the calamity and depravity in the world with no hope to offer. With only the Scripture, you have hope but no sense of where to apply it.

So, on this day of prayer and fasting for the Anglican Church in North America (ACNA) Diocese of South Carolina, for the decisions that lie before them in the face of the South Carolina Supreme Court’s decision to award 29 of their churches to The Episcopal Church (TEC), it seems appropriate to take the decision in one hand, and the Bible in the other, and seek God’s mind in this situation to direct our prayers.  As I prayerfully and carefully reviewed the decision, the facts around it, and all the reports and reviews published so far, I believe the LORD directed me to Psalm 37:

“Do not fret because of evil men or be envious of those who do wrong; for like the grass they will soon wither, like green plants they will soon wither away.” (Ps. 37:1-2 NIV)

Psalm 37 addresses the question “How should God’s people react when ‘evil men’ and ‘those who do wrong’ succeed in their ways?”

The decision of the South Carolina Supreme Court in the matter of the ACNA Diocese of South Carolina vs. the TEC Diocese of South Carolina (Heard September 23, 2015 and filed August 2, 2017) appears to be such a case.  The net effect of this case seems to be the transfer of the property of 29 congregations from the ACNA Diocese of South Carolina to TEC.  Ultimately this could mean the displacement of thousands of families from the place where they have worshiped for generations.  It could mean the loss of all the ACNA Diocese of South Carolina offices, the bishops residence and more.

The legal effect is to overturn the South Carolina Supreme Court decision in All Saints Parish, Waccamaw v Diocese 385 S.C. 428 (2009) that neither the then Episcopal Diocese of South Carolina nor the national church (by the Dennis Canon) can create a trust in favor of themselves in any church in South Carolina unless they already have an express property interest in that church.  This 2009 decision was based on long settled common law principles of trusts in South Carolina law.  The legal effect of the Court’s August 2 decision is to reinterpret the facts of this case de novo, and by bare majority of 3-2 to reinstate the validity of the Dennis Canon by turning the “neutral principles” approach to church property disputes (see Jones v. Wolf , 443 U.S. 595 (1979)) into a “deference to internal hierarchical church law,” approach—turning “neutral principles on its head.”  As Justice Kittredge concluded in his opinion (dissenting in part and concurring in part): “The message is clear for churches in South Carolina that are affiliated in any manner with a national organization and have never lifted a finger to transfer control or ownership of their property—if you think your property ownership is secure, think again.”

I won’t add to the superb analysis by Allan Haley (aka The Anglican Curmudgeon) in the article on how Justice Hearn, a member of the TEC South Carolina Diocese and one of the leaders who actively sought to oust Bishop Mark Lawrence while he was still in TEC provided the swing vote that transferred millions of dollars of property to the church she was actively representing, and how her participation in this case, rather than recusal, violated the South Carolina Appellate Rules of Court and Rules of Judicial Conduct.  “A Massive Conflict of Interest” is an understatement, and worth reading in its entirety.

But to make matters worse, the Provisional Bishop of the TEC Diocese in South Carolina is Gladstone B. “Skip” Adams—the same TEC Bishop of Central New York who would not sell back Church of the Good Shepherd Binghamton NY to the departing Anglicans (the majority) but instead sold it below market value and the offer of the Anglicans to Muslims who converted the church into a Mosque!

So, if the August 2 decisions stand, what will happen to the historic Anglican Churches of Charleston?  They are surely historic landmarks that cannot be sold and turned into condos, townhomes or retail boutiques as other TEC bishops have tried to do. These Anglican Churches left en masse (80%) with the clear majority of their members when they left TEC. There are not enough Episcopalians to keep the buildings open and maintained.  Will we see Skip Adams turn the steeples of the Holy City into minarets, yet again—or museums?

This is a bad situation. Those who do wrong, and who have a history of doing wrong, appear to have succeeded. What can God’s people do?

The psalmist answers quite simply “There is a place for righteous anger (see Psalm 35), but don’t react to the wicked with their own weapons.  Don’t fret.” Don’t be constantly and visibly worried, anxious and distressed. Don’t get heated. Don’t be envious.  Resist the temptation to play the same games as those who do the wrong thing. Resist the temptation to harbor a spirit of resentment—which is tantamount to doubting God’s final justice.  Don’t plot or gnash your teeth and plan to slay those who do wrong with the sword—let God take care of that (see vv. 10-15)


“Trust in the LORD and do good; dwell in the land and enjoy safe pasture.  Delight yourself in the LORD and he will give you the desires of your heart.” (Ps. 37:3-4)

In other words, shift your focus from the wrongdoers to GOD.  As followers of Jesus Christ, rest in his perfect work of salvation, receive the promises of the Father, and let the Holy Spirit stir up in you and me every good gift for the furtherance of His Kingdom.  Cultivate an attitude of faithfulness—and do it right where you find yourself!  That’s what it means to “dwell in the land and enjoy good pasture.”  Do good in the place God has given you.

And what if that place is up for grabs?  No matter.  God works wherever he sends us to wait—even those places where the wrongdoers dominate (see 37:34).  God calls us to seek the welfare of the city where he has “carried us into exile,” and to put down roots however temporary our stay may be (See Jer. 29:4-7).

I am reminded constantly of the example of The Falls Church Anglican in Virginia.  Under years of costly litigation and appeals, they planted three churches in the DC Beltway (Arlington, Alexandria and Vienna) and one on the outskirts of Northern VA, in Winchester.  All are thriving.  TFC lost their buildings, but their congregation grew even as they gave away hundreds to these church plants!  Now they have a location and a building that exceeds what they had before, as they are growing in mission and evangelism where God has planted them.

How tragic it would be if litigation and appeals took our eyes off God and the things that delight him—especially reaching those who do not yet know the transforming love of Jesus Christ.

“Commit your way to the LORD; trust in him and he will do this:  he will make your righteousness shine like the dawn, the justice of your cause like the noonday sun.”  (Ps. 37:5-6)

You see, our ultimate vindication lies not with the secular courts, but with the LORD.  “He will make your righteousness shine like the dawn, the justice of your cause like the noonday sun.”  (emphasis added)

From the time faithful Anglicans began to leave TEC, the supreme courts of many states have made a mess of Jones v. Wolf and the application of “neutral principles of law” in resolving church property disputes.  The August 2 decision of the South Carolina Supreme Court not only turns neutral principles into deference to a hierarchical church, it turns TEC into a singularly privileged body that can impose a trust on property in which it has no settled express interest. Unlike any other person, corporation or non-profit, it can declare by a mere change in its canons that it is the beneficiary under an implied trust!  Such a privileged position is certainly a violation of the Establishment Clause of the US Constitution.  And that doesn’t even begin to address the constitutional rights to freedom of association that have been violated by making TEC, and any hierarchical church, a “roach motel” where you can check in but never leave.

But despite the hostility of secular courts and the media, and despite the political agendas that trump the facts and reasoned legal precedent, the Anglican Church in North America is planting new churches and growing. The same cannot be said for TEC.  Many people who were never in TEC and know nothing of the litigation are coming to ACNA because they are attracted to its authenticity of both liturgy and Biblical preaching.  They are coming because of our commitment to Biblical discipleship and local mission.  Young and old, single and families are finding a home in churches that provide both a grace-filled comprehensiveness and Biblical boundaries that lie at the heart of Reformational Anglicanism.

Could this be a result of the LORD causing the justice of our cause to shine as the noonday sun?

“Be still before the LORD and wait patiently for him; do not fret when men succeed in their ways, when they carry out their wicked schemes.  Refrain from anger and turn from wrath; do not fret—it leads only to evil.  For evil men will be cut off, but those who hope in the LORD will inherit the land…”  (Ps. 37: 7-9)

Being still before the LORD and waiting patiently for him is no mere resignation.  It is a positive, faithful effort to replace fretting and doubting by a trust in God, because the solution of the problem can only come from him (see also Psalm 62:5).  This nothing less than the posture of prayer.  Prayer keeps us focused on delighting the LORD and trusting in him.

The ACNA Diocese of South Carolina has remedies available—not only the petition for rehearing before the South Carolina Supreme Court that Allan Haley mentions in his article, but also petition for hearing before the US Supreme Court on the federal issues that I have mentioned already, including the misinterpretation and misapplication of Jones v. Wolf, it’s last ruling on church property disputes.  This case certainly seems ripe for such a hearing.  We can be sure that Bishop Lawrence, the Standing Committee and their superior legal team are already working on this.

But our job now is to PRAY for them.  Pray for the Bishop, pray for the Standing Committee and pray for the legal team.  Over the years that I have been with the AAC, I have been blessed to work with Anglican lawyers who pray!  I have been impressed by so many Anglican lawyers who have invited the people in the churches they represent to see such prayer as an even more important work than the research, briefs and oral argument.

I know for a fact that these Anglican attorneys depend on our prayers!

But in this time of waiting let’s not forget the other Anglicans affected by TEC litigation—the thousands in the Anglican Diocese of San Joaquin who have been removed recently from their churches by the California courts, the pending litigation in the Anglican Dioceses of Ft Worth and Quincy, and the dozen or more churches in the Anglican Diocese of Pittsburgh that are awaiting trial or a settlement with TEC.

Perhaps we also ought to pray for the leadership of TEC.  Pray that they will let go of the anger and bitterness behind scorched earth litigation, and seek a result which promotes “healing, repentance, forgiveness, restitution, justice, amendment of life and reconciliation” among all parties.  After all, these lofty, even Biblical, goals are the very language they use for reaching “accords” in their own Title IV Canons (see TEC Canon IV.14.1) Wouldn’t such an accord or settlement be better than turning the steeples of historic Anglican Churches into minarets or museums?

“Better the little that the righteous have than the wealth of many wicked; for the power of the wicked will be broken, but the LORD upholds the righteous.”  (Ps. 37: 16-17)

Whatever the result may be, whatever we have left will be better than that which is confiscated and held by wrongdoers.  There are so many stories of Anglicans losing their church buildings in costly litigation, only to find often miraculous provision of new and better buildings than they had before.  There are also many stories from Anglicans who left TEC with only the shirt on their backs, and as a result shifting their focus from buildings to mission!  Our former Archbishop Robert Duncan summed it up so well: “They can have the stuff; we’ll take the souls.”

That too is the story of our Anglican brothers and sisters who discovered us through this awful conflict, and who remind us that where they live, all it takes to plant a new church is a banyan tree with enough shade and a few people willing to share Jesus Christ with the least, the last and the lost!

O God, the protector of all who trust in you, without whom nothing is strong, nothing is holy: increase and multiply on us your mercy; that, with you as our ruler and guide, we may so pass through the things temporal, that we lose not the things eternal; through Jesus Christ our LORD, who lives and reigns with you and the Holy Spirit, one God, for ever and ever.  AMEN

The Rev. Canon Phil Ashey is President & CEO of the American Anglican Council.

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