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 al 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.
By that logic, Trinity Wall Street (and its $6,000,000,000 real estate empire on Manhattan Island) belongs to the Bishop of London. Or, going back 1 step further, Canterbury Cathedral (and Trinity Wall Street, as a “church plant” of the CoE) belongs to the Catholic Church (aka Roman Catholic Church).
Otherwise, asked and answered dozens of times over the past 15 years. I refer you to Mr. Haley’s blog “Anglican Curmudgeon” for much better analysis of your “questions” than I can present here in a couple paragraphs. Go back to his early posts and read through. You might save a bit of time by limiting yourself to his many contributions to AI, which will include the “highlights” of the legal arguments of more recent years.
aTo/Anglicanus original post:
Yes.
According to TEC, they are separate denominations. Neither the Archbishop of Canterbury or the Queen of England have any authority over TEC. According to their own court filings in numerous state and federal cases, TEC has presented documents and sworn testimony that the highest authority in TEC is the General Convention, which has NO authority whatsoever in the Church of England.
They choose bishops with entirely different methods, and different ordination vows (also true for clergy). Synodical processes radically different. Disciplinary processes radically different.
In what way are they the same denomination?
Truth is, the local Midwestern ACNA diocese has much more in common with TEC than does the CoE.
Exactly right. It is just a fact, and not the subject of any discussion for the last fifteen years or even fifteen minutes that the ACNA and the Diocese of South Carolina, whatever name they choose, are outside the Anglican communion. They have chosen to be outside it. Those are the facts.
That is also fair comment. But it is not fair to say that South Carolina was excluded from anything – they chose quite clearly to leave anything Anglican before they chose to affiliate with the ACNA
The Anglican Communion has never been a part of this court case in any way. The Diocese of South Carolina (and later TEC, for that matter) existed for more than a hundred years before the Anglican Communion was even dreamed of.
Not a single person until today, and now we have two within 24 hour, has suggested that the parish buildings in South Carolina are actually owned by “the Anglican Communion” and that all this litigation was wrong-headed. None of the lawyers involved, none of the judges and justices involved, none of the legal commentators involved, no one thought of this until today. Amazing.
Your points re Anglican and Episcopal origins are such good ones. They’d never occurred to me before. Thank you for that.
Thank you for the kind words, w nicholas.
Frankly, my expectation is that TEC will lose (to some degree) on appeal, simply because there are so many denominations (over 50, if memory serves) in the United States that use the adjective “Episcopal” in their names. But in all probability the courts will leave in place a “distinction” between TEC and the diocese that is now part of ACNA. Will TEC now go on to sue the African Methodist Episcopal Church? the Apostolic Episcopal Church? etc? I am almost surprised that there is no “Episcopal Presbyterian” church, oxymoron notwithstanding.
Just so I don’t aggravate a fellow poster with “semantics” on the word “episcopal” (trying to adhere to the spirit of George Conger’s post, as much as I would like to respond in kind to said poster), let me say that in my opinion, the Diocese of South Carolina dropping the word in concert with the judge’s order will only aid their work in evangelism, as it will be clear to prospective members that they are NOT part of TEC, and end any confusion on the part of Christians trying to avoid TEC.
And there are several “Episcopal” churches in the Anglican Communion, such as Sudan, South Sudan, and Scottish Episcopal Church. I had an amusing moment seeing a Scottish bishop get a bit testy as a visitor to a US diocese meeting when explaining that no, the Scottish Episcopal Church was NOT a subsidiary, and Scotland was NOT one of the 14 countries where TEC claims ecclesiastic domain (from TEC’s point of view).
If the Federal Court chooses to invoke truth in advertising, TEC would be forced to change its name to “Church of the General Convention” as now, bishops are accountable to “mind of the convention” resolutions, which override constitution, canons and the Book of Common Prayer as well.
The Anglican world is a mess. I thought there would be more of a reaction and indignation on the blogs but haven’t seen much yet. Most are probably worn out and hoping to hunker down in a safe parish in the congregational mode.
A secondary issue is the sorry state of the justice system including Federal and state courts, FBI, CIA, and NSA. The US Constitution is my constitution. I’m perfectly capable of understanding it. It is not a playground for the legal profession. Equal protection under the law is now a joke. Suing someone until they are broke is one tool (Gerry Spence). Patent trolls have a favorite court in East Texas. A fair trial is when a guilty person has a 50/50 chance of acquittal. The 9th Federal Court of Appeals upholds all things Marxist. “I’ll fight it to the Supreme Court.” Your issue better be on the same political side as Pres. Clinton’s appointees. The Supreme Court of the State of Washington recently legislated and mandated a huge raise for lazy teachers ($100-125k/yr plus benefits).
Put your trust onto the Lord. Not the church. The Lord.
A classic example of begging the question.
The issue of whose name the property is in has been the entire point of years worth of litigation.
You are about fifteen years late into this conversation. The facts and arguments have been well rehearsed — please move on to another topic. At this point it is hard to tell if you are being a troll or simply do not know the history or arguments. This is not the forum for your questions.
Yes, this post-er often has borderline-type questions and comments.
Ma&Pa’s Podunk Hardware after existing many years as a legal entity with the proper papers filed with the Secretary of State decides to enter into a relationship with Ace. Many years later, Ma&Pa’s Podunk Hardware decides to drop the relationship with Ace and begin a new one with TrueValue. Does Ace own the rights to the name Ma&Pa’s Podunk Hardware? This court says it does. I say the court is wrong on multiple different levels.
My understanding is the TEC people, the plaintiffs, filed the suit.
Yes, TEC filed this lawsuit and Bishop von Rosenberg *personally* filed the federal lawsuit against Bishop Lawrence. crazy!
I vote “troll.”
I see a lot ink spent on whether SC chose to leave the TEC. I feel it had no choice but to leave. Scripture is very clear
2 Cor 6:14-16
“Do not be unequally yoked together with unbelievers. For what fellowship has righteousness with lawlessness? And what [e]communion has light with darkness? 15 And what accord has Christ with Belial? Or what part has a believer with an unbeliever? 16 And what agreement has the temple of God with idols? For you are the temple of the living God.”
SC will be fine, God is bigger………………..
What seems more alarming than the change of name is the serious decline in active membership. According to figures released yesterday the diocese seems to have lost about one third of its active membership. In 2013 the diocese listed 17,798 communicants. In 2018 that was down to 12,127. ASA and baptised membership are also down.
Odd that you would pick 2013 as the comparative year, Paul. Note that according to TEC’s own statistics, TEC shows over 28000 TEC members in South Carolina in 2013 (down to 6387 in 2014). TEC and ACNA national figures do not report communicants. But the point would be that 2013 was a confusing year for both. Clearly TEC was counting some members (over 20,000) of the then “independent” (had not yet joined ACNA in 2013) diocese, and the diocese was counting some members of TEC. But if you use 2013 as the comparative, TEC shows its membership in South Carolina as down by over 67%.
That said, yes, there is numerical decline in the diocese. And TEC is picking up a few of those folks along with the usual progressive influx from other denominations. (TEC’s South Carolina group/diocese/whatever it is has increased its membership since 2014). It was interesting to note the TEC report of a couple years ago that showed that less than 1/2 its membership had been baptised as Episcopalians (meaning that some 2.5 to 3 million living people who were originally baptised as Episcopalians have since left- replaced in part by approximately 1 million people who have come in from other denominations).
From an academic point of view, it will be interesting to see how the numbers compare between the 2 groups a couple years after the legal wrangling ends. But from a Christian point of view, perhaps the best course is to pray for all concerned.
“It was interesting to note the TEC report of a couple years ago that showed that less than 1/2 its membership had been baptized as Episcopalians (meaning that some 2.5 to 3 million living people who were originally baptized as Episcopalians have since left- replaced in part by approximately 1 million people who have come in from other denominations).” And are the 1 million people who have come in from other denominations really “Episcopalians”? That is another way that the episcopal organization is disappearing.
Difficult to say Fr. Dale, as if there is really such a thing as “Episcopal” doctrine (or for that matter Anglican doctrine), it is difficult to define, at best- and the old requirement to be an upper middle class Republican no longer applies (except in Philadelphia and Chicago and some parts of the South, where you were expected to be a Democrat). Anecdotally, the last vestry I served on included 3 “cradle” Piskies, 2 former Lutherans, and 2 former Catholics (IIRC). The Lutherans had joined because they did not like the local Lutheran pastors, and because of in-fighting among the several ELCA churches AND between those and the several other Lutheran denominations in town. Did not hurt, probably, that the former rector had been baptised a Lutheran, I think he made the jump to TEC in seminary, not sure. The Catholics became Episcopalians co-incident with their second marriages. The local TEC bishop was also a divorced Catholic in his second marriage, so they were in good company.