South Carolina Court Ruling in the All Saints Pawleys Lawsuit Against the Diocese of South Carolina Finally Occurs

Please see important background information on this here, there and thereKSH.

A South Carolina state judge has ruled that the minority of the members of the parish of All Saints, Waccamaw in Pawleys Island, South Carolina who remained loyal to the Episcopal Church do, in fact, constitute All Saints Episcopal congregation.

The ruling arose from two different lawsuits, the earliest filed in 2000, over the issue of who owns the 50-acre campus that is also home to the breakaway Anglican Mission in America (AMiA). One of the cases arose in 2000 when the Diocese of South Carolina filed a public notice that All Saints, subject to applicable canon law, holds its property in trust for the diocese and the Episcopal Church as a whole. Attorneys for the diocese said that the notice was filed out of concern that All Saints might attempt to convey its property to the AMiA.

The parish then sued to have the diocesan notice removed from public records, claiming that legal title belonged entirely to the parish. The parish said they simply complied with diocesan canons as a matter of courtesy.

A majority of the All Saints congregation voted in late 2003 to amend the parishs certificate of incorporation to omit references to the Episcopal Church and then to separate from the Episcopal Church.

In December 2003, then-diocesan Bishop Edward L. Salmon Jr. put the parish under his direct supervision, and helped it to organize a new vestry. The Episcopal vestry then filed the second lawsuit, asking the court to recognize them as the proper representatives of All Saints parish, entitled to possession of All Saints name and property.

Read it all.

86 Responses to South Carolina Court Ruling in the All Saints Pawleys Lawsuit Against the Diocese of South Carolina Finally Occurs

  1. Matt Kennedy+ Says:

    Regardless of where you stand on this particular case, it does seem to set a troublesome precendent for similar property battles elsewhere. Would that this could have been settled out of court.

  2. stevem Says:

    This is the result of a terrible strategic mistake by Bishop Edward Salmon.

    God have mercy on us all.

  3. css Says:

    Traditionalists/reasserters in court with one another for yearswhat is wrong with this picture?

    There had to be another way.

  4. ettu Says:

    An unfortunate amount of heat and anger has centered on property ownership - anything that lays that issue to rest is a blessing and allows the important issues of ministry to proceed apace.

  5. Gloria Says:

    Last thing needed just now.. Hoist on the Denis Canon petard..
    Gloria

  6. edistosands Says:

    ettu, this will hardly solve that issue as it is the ruling of one state judge in one state. There have already been different rulings in South Carolina in this case by others, and the law varies from state to state.

  7. Sarah Says:

    As Ive said claims by competing entities as to whether they own property will be settled by the state.

    It is each state that will determine who owns what property.

    I am very happy to know that, too, by the way.

  8. ettu Says:

    #6 True but it is a significant step - the judge seemed fairly strong in the opinion and it does seem to follow in previous legal logic- anyway I certainly did not mean to say this was the final judgement but rather that it is a step along the legal path - I assume an appeal may be made but there does not seem to be a lot of wiggle room in my reading of the article

  9. Sarah Says:

    And of course, I assume that this will be appealed all the way up the line.

    As will those other cases in other states for which there is no negotiated buy-out.

  10. ettu Says:

    #9 I assume it will make TEC less amenable to negotiated buyouts.

  11. Sarah Says:

    As the wins in California will make reasserters less amenable to the threats of reappraiser bullies. ; > )

    No, I think given the committee formed by ECUSA to deal with the lawsuits issue, that they have plenty to fear in regards to the trends of some states.

    I look forward to the years of lawsuits, ettu, and I say that with sincerity.

    Given the alternative, the tender mercies of the state are far far better than that of much of the diocesan leadership of ECUSA.

    Whatever the state ultimately decides, no matter what, will be fine by me.

  12. James W. Says:

    This decision just means that the judge in this case is inclined to accept the heirarchical church theory as regards property ownership. If there is no successful appeal, then that will be the law in South Carolina. This theory will be the law in many states. California has a different theory that courts apply. Other states will adopt that theory.

    What conservatives need to do is how to argue under the heirarchical church theory and still win their cases. My recommendation is to use the TEC constitutional preamble and argue up to Canterbury. But that would need to wait until any post-September 30 consequences for TEC.

  13. ettu Says:

    #11 Speaking personally, I would never look forward to the years of lawsuits I would find them too distracting from the business of the other aspects of life - however chacun a son gout (or something like that) - regards

  14. Sam Says:

    Exactly. What happens if, before the end of the appeals process, TEC is indeed booted from the Anglican Communion? Couldnt All Saints/AMiA argue that previous members of All Saints had reason to believe they would remain Anglican since the TEC charter includes that terminology?

  15. Arthur Says:

    As I have said several times before, the only way these cases can win for the departing congregations is to demonstrate that TEC does not function as a hierarchical church, but as a congregational church body.

    The degree to which TEC functions on a congregational governance is plain for all to see. Much of the bishops authority in the churches of historic Christianity are not vested in the bishops of TEC but in othe entities such as vestries who hire their pastors. Diocesan priests are generally free to leave a diocese after their first assignment. Doctrinal and major governance issue have been given to the GC, etc.

    TEC is not recognizable as a hierarchical church in comparison to true hierarchical churches. This must be argued, or all is lost.

  16. Anselmic Says:

    Loose - Loose. Always is when Christians take each other to court.

  17. Africanised Anglican Says:

    #9 Sarah Says:
    May 1st, 2007 at 7:39 pm

    And of course, I assume that this will be appealed all the way up the line.
    ________________________________________

    Im afraid I do, as well.

    I cannot but wonder whether this judgement isnt a severe Divine mercy on both sides. The AMiA has done its best work when its members have walked away from propertiesa move which in many cases positions the AMiA to claim the Christian moral high ground. Here, somewhat uncharacteristically, it has not done soand, though I understand the arguments for trying to keep the property (ECUSA/TEC nowadays gets most of its mileage by pretending to be a Christian church, and for Christians to fight expropriations of property by ECUSA/TEC is in some cases to fight against ECUSAs/TECs efforts to lay fraudulent claim to the insignia of Christianity), it may be that AMiA will be the healthier for this stinging rebuke. As an affiliate of the AMiA, I feel the sting, but I am not convinced that the AMiA did not have it coming.

    For the Diocese of South Carolina, it has likewise just handed TEC/ECUSA as great a vindication as TEC/ECUSA could possibly have hoped to obtain in this situation for the Dennis Canon. (Not a total victory, of course, but the best TEC/ECUSA could have hoped for here.) The members of that relatively-orthodox scrap within TEC/ECUSA have now successfully preserved the Pawleys Island property and name for the organisation that just blocked Mark Lawrences confirmation and served notice that the days of Christian bishops in TEC/ECUSA are numbered, and that that number is short. When, within 15 years, the current membership of the Diocese of South Carolina are looking for a place to worship that is not controlled by an increasingly-apostate TEC/ECUSA national body, they can look wistfully at the campus they have successfully wrested from the hands of their perhaps-over-eager fellow orthodox in AMiA, who, had they won this lawsuit, would thereby have kept the property in Christian hands for a longer time than the TEC/ECUSA Diocese of South Carolina will be able to do.

    Score two (or three) for Jefferts-Schori and her coreligionists.

  18. Africanised Anglican Says:

    (On rereading #17, above, a clarification)

    The mercy to both sides may be a sharp lesson in the need to sacrifice the property and the air of credentialling that goes with it, and, in its absence, to concentrate on mission, evangelism, outreach, and the building up of the Body of Jesus Christ. Too long it has been too easy for American Anglicans to rest on two millennia of past successes, and the reputation for Godliness built up from the Apostles day. That reputation is fading quicklyand has been fading for decades. As the properties and other institutional goodies vanish, Christianity in American will need to get much more serious about where its priorities are. If, or to the extent, that it does so, I think it stands a chance of something other than the slow rot that differentiates most of American Anglicanism from the truly living Anglican Church in the orthodox parts of the third world.

  19. Christopher Hathaway Says:

    AMIa could have taken the high ground and renounced the property. The diocese could have done so as well. They all forsook that territory.

    Yet the diocese is doubly foolish, for they pursued an argument which will be used against them by 815. How they did not see that coming escapes me. What their justification for this lawsuit will be if they choose to fight 815 for diocesan propery also escapes me.

  20. Nelson Koscheski Says:

    Thus ends a beautiful chapter in American church history connecting a place, its resources and courageous witness to the Gospel. Good job, South Carolina!

  21. James Manley Says:

    If the AMiA congregation had walked away, theyd have a campus twice as nice by now.

    It isnt worth the fight, folks.

  22. Catholic Mom Says:

    I believe that the reason Eastern judges tend to rule for TEC and Western judges for the congregation is that a lot of Eastern judges are Catholics. It is just very very difficult (impossible) for the Catholic mind to grasp that a church doesnt belong to the Church. Its as if you contributed money to the local courthouse for restoration and then announced that you and your friends wanted it for yourself seeing as how you put so much money in it. I understand thats not the situation here, but I guarantee you that most Catholic judges just cant get over an insuperable assumption that every church is a hierarchical church. The Catholic Church can do whatsoever it pleases with any church property and very few Catholics even grasp that any other system exists. Next time, try to find a Jewish judge! :)

  23. Ralinda Says:

    The classy and Christian thing for the diocese to do now is to charge nominal rent and allow the AMIA to continue to use the facilities.

  24. Spiro Says:

    Let me say it upfront: I hate these property legal fights, especially within the reasserting camp.

    I understand the need to fight for property, but a legal fight over church property (as in the EcUSA/TEc cases) must be the very last option. Honestly, I really think it may be justified only in the fewest of cases, if in any at all.

    Folks, this is a sad day for us. I think SC was mistaken in her approach and handling of this very matter. However, it is never too late to make amends.

    I think Ralindas suggestion is sound: Let the Diocese of SC charge nominal rent and allow the AMIA to continue to use the facilities.

  25. Spiro Says:

    On Another Note:

    After years of serious observation (and in some cases, participation) of Episcopalianism, I have come to this conclusion:
    We are so very comfortable with our beautiful stained-glasses that nothing will separate us from the love of Glass. (God is already out of the picture, any way).

    We Episcopalians have become so lazy, pampered, and lacking in faith, that we are very afraid of taking bold and courageous steps whenever such are needed.

    We don’t seem to learn from others.
    We forget that most, if not all, of the non-denominational churches with over 1,000 ASA we have today started from a store-front, a basement, or from some unsightly rented space. In most cases, these churches were founded through the efforts and the dream of a man (and his wife, in some cases). Yet, in a matter of few years these churches have grown from a few dozen members to thousands ASA, and the envy of our (EcUSA) pathetic average under-100-ASA parishes (not minding the fact that our parishes are over 50 years old – on the average).

    I have argued (on various occasions and venues) that it is very possible to grow a faithful congregation from a very small number. Yet, most of us (ordained and lay) are very, very scared of taking that leap of faith - trusting God to provide the growth that His ministry needs (after all, it is His in the first place). Sometimes, it seems as if we don’t even trust the Holy Spirit in our church development initiatives.

  26. dcs Says:

    So on a somewhat related note, I suppose this means AMiA will be looking for a new headquarters? IIRC, they had their base of operations at All Saints anybody know?

  27. ruidh Says:

    This result is the one to be expected under existing Supreme Court precedents and the law prevailing in most states. A hierarchial church may bind its congregations and members in precisely this way. The California rulings are anomalous. They are potentially a violation of the Free Exercise clause of the constitution and I expect them to have some rough going as they work their way up into the appellate division.

  28. JohnH Says:

    15, you are deluding yourself there is no way to argue that TEC is congregational. Have you bothered to look up how cases define these terms? The best you can do is to argue that the hierarchy extends to the Anglican Communion, but that is not likely to be successful either.

    22, nothing like wild speculation filled with religious bias. Wait a while until the hierarchy wins in Virginia, where the cases have just been assigned to a Jewish judge. Then one hopes you will abandon such unsupported generalizations.

  29. Arthur Says:

    As I see it, TEC wants to have it both ways. At every turn it disempowers its bishops. How many times on T19 have I read a comment to the effect of: And what does a bishop do anyway? Bishops have little power over congregations, little power over the assignment of priests, and are cowed by lay Deputies on the denominational level who continuously remind them that they as bishop have nothing to say or do outside of a General Convention.

    But, when it comes to property disputes, TEC proclaims from the rooftops how hierarchical they are.

    This is just another in the long long long list of contradictions and fictions that is TEC. And, the list grows longer with each passing generation.

    Matt, should not Stand Firm consider a name change to Run For Your Lives?

  30. Ralph Says:

    Please understand folks that TEC boasts of having billions in trust funds, and their desire is to win at any cost. Having empty buildings is no concern. Egos rule the day!! It matters little that the Empress has no clothes..

    Walking away from buildings is an option for some areas. In other areas that are fully built out, there is little opportunity to buy land and start over.

  31. Words Matter Says:

    The Catholic Church can do whatsoever it pleases with any church property

    Actually, check out Boston for some real nastiness around parish closings and shifting of properties. But generally speaking, the Catholic Church as a corporate entity can control the property, since the bishop, by virtue of his office, holds legal title to the property. Recent ugliness in St. Louis came about due to an exception to that rule.

    The question is: as the Denis Canon came about in the wake of the defections (nay, not schism not at all) after womens ordination, so you have to wonder if the present controversies will end in transfer of property titles to diocesan or even national structures.

  32. Ron Baird Says:

    I am curious as to how this will impact Common Cause and the efforts to bring the various orthodox bodies in America together. Since both AMiA and South Carolina (thru the ACN) are members will this make those efforts more difficult?

  33. JohnH Says:

    Arthur, re: 29, the legal question is not what power bishops have vs laypersons. It is whether the local entities (parishes) are subordinate to the hierarchical entities (dioceses and TECs). So while you may have a philosophical point, your contradiction argument gets nowhere legally.

  34. Sarah Says:

    RE: #11 Speaking personally, I would never look forward to ” the years of lawsuits”

    Indeed thats why I said given the alternative. ; > )

    The one alternative to years of lawsuits submitting to the clarity, objectivity, and legality of the state is submitting to the clarity, objectivity, and legality of the Episcopal leadership.

    [snort]

    The state can be trusted far far more than ECUSA leadership. And I say that as a devoted anti-state person.

  35. John B. Chilton Says:

    1. Does this mean South Carolina cherry picks which part of the primates communique it supports?

    2. Does it mean that if South Carolina were to leave TEC it would not result in a grand merger of CANA AMiA et al?

  36. Reason and Revelation Says:

    I cannot for the life of me understand why DioSC would not let these people go free. I thought DioSC was a stronghold of orthodoxy?

  37. Kevin Says:

    #36 There was a time where AMiA was the bastered child. Anglicans Missing in Action and all that. Now that the Golden Child CANA is on the scene prospectives change. This rule does help TEC in VA in someways, so from our perspective on May 1, 2007 looks very different than when Salmon+ filed.

    Other AMiA parishes that walked away seem to be doing better and the old building going nearly empty. I do ponder at times if we hold on too tightly things that do not last.

    My the Lord make the path straight for the faithful and give them a home and grow them into a flourishing community

  38. The Masked Tortilla Says:

    Friends, if I can just remind us who wrote this article. Just keep that in mind - as well as the bias. More to come

  39. Arthur Says:

    Can someone please explain to me why the D. of SC which is a conservative diocese is taking an AMiA community to court? This doesnt make sense to me. Reasserters have been chiding TEC for suing departing congregations for property but then one of the reasserting dioceses does the same.

    Am I misunderstanding something here?

    Very confused,

    Arthur

  40. Petesie Says:

    Ouuucchhhh!!!!

  41. Petesie Says:

    The Courts decision will send shockwaves throughout the conservatives. Good grief, I certainly hope and pray that other judges realize that TEC is herarchical in name only!

    A poorly-reasoned decision. Question: is the Judge Roman Catholic? (Or attended parochial school, and is not really RC or anything else? Truly, is that where his expressed idea of hierarchical church derives?

  42. Petesie Says:

    Of course, I meant to type hierarchical.

  43. Petesie Says:

    #22: Catholic Mom: I totally agree with you, so many of the Eastern judges are of Roman Catholic background, which is why the strange distortion of hierarchical takes place in TEC cases. Its as if they hear the word bishop and their mind freezes!!!

  44. Petesie Says:

    #29 post: Arthur, your post:

    This is just another in the long long long list of contradictions and fictions that is TEC. And, the list grows longer with each passing generation.

    is one more reason I wish you would confine you blogging to some comfortable Roman Catholic site. You have left the Anglican fold, and are happy with the Pope. Good for you, I guess.

    Your snotty attitude and condescension is NOT appreciated here, on what is supposedly an Anglican site. Why continue to waste your time thusly with us? Or are you outgunned on RC sites? I mean, why slum with us poor Anglicans, some of whom contentedly proclaim the Protestant side of Anglicanism?

  45. seymour Says:

    Arthur Says:
    May 1st, 2007 at 11:54 pm
    Can someone please explain to me why the D. of SC which is a conservative diocese is taking an AMiA community to court?

    Because it is the correct thing to do. no matter how much Bishop Salmon may have wanted the AMiA group to have the church, to give into their case opens up a huge can of worms. Might as well dissolve the diocese because any group could come into the church, take a majority by sheer numbers and walk off with the property. Bishop Salmon may like the group that is in this aprish but what if the next group that holds a majority in a parish is cult? I know this is an extreme example, but I believe i would be right from a legal standpoint. When i give money to the YMCA, not matter how much, i dont get to take the building or anything else when i leave the organization.
    Seymour

  46. John B. Chilton Says:

    If institutional websites are to be trusted, the Diocese of South Carolina treats All Saints Pawleys Island as if it never left TEC:
    http://www.dioceseofsc.org/churches/asp.htm

    Wise - maintain your claim.

  47. friarjeeves Says:

    Arthur in #39, All Saints took the diocese of South Carolina to court. The diocese is the defendant. You have it exactly backwards.

  48. strugglingalong Says:

    A number of the commenters incorrectly summarize why from the bishops perspective the diocese had to defend itself when All Saints sued.

    As Bishop Salmon wrote:

    The basic issues on the table are those of lawlessness and the stability of the Diocese itself. We have no theological issues with All Saints. If any parish in the Diocese can unilaterally decide to not be under the Canons, appoint vicars, do what they want to when they want to, our strength as a Diocese is soon destroyed. There is no authority, only individual choice. That is exactly why the Episcopal Church is in the mess it is in. Bishops have individually acted without accountability, believe or not believe as they choose. That is lawlessness. It is my duty to oppose it.

    All Saints could have gotten a property settlement (and perhaps more) if they had worked with and communicated with the diocesan leadership about what they wished to do.

  49. BillS Says:

    Petesie,

    Thank you for your Freudian slip. Herarchial have more meaning than you intendedI believe. Best

    Bill

  50. ettu Says:

    #34 There are more than 2 alternatives and I prefer the one that allows me to get on with my life. I may be wrong and dont want to analyze hidden, subconscious motivations of others but I am also worried that at least a little of this wrangling in court is an attempt to punish TEC and not really related to the strict economics of the matter. Years of lawsuits - no doubt costing hundreds and hundreds of thousands of dollars with an uncertain outcome - sounds to me like a risk and possible waste of energy and resources. I can,however, see the need to pursue that course if one is angry and driven by a desire to send the opponent to the pillory or the whipping block. Usually - for example in a divorce - the cost dissuades a plaintiff from this course of action - sometimes the case goes forward much to the delight of lawyers and the press who all have major secondary gains from the pain of the couple. I feel we are in an analogous situation and that anger should be abolished from our minds as we consider this judgement

  51. Reason and Revelation Says:

    Catholic Mom, I have no idea what you are talking about! Not a whole lot of Catholic judges in the Carolinas. Some, but not many. Most of them are from congregational churches.

    Here is the appellate decision from St. Andrews of Morehead City, NC, another coastal church.

    http://www.aoc.state.nc.us/www/public/coa/opinions/2003/020768-1.htm

    For the record, St. Andrews Episcopal has a relatively small but stable congregation maybe 4-5 years out.

  52. ANR+ Says:

    Re # 48

    Bp. Salmon could be talking about Grace and St. Stephens in Colorado Springs or Falls Church and Truro or Christ Church, Plano.

    Amazing.

  53. JohnH Says:

    Catholic Mom and Petesie, do you seriously believe that Catholics are incapable of understanding how any other church is organized? (And do you have any idea how insulting and ridiculous that statement is?)

    Do you really think that judges in these cases just rule based on their own church experience? (If so, you havent read many opinions in these cases?)

    These questions do not even address the fallacy and wild speculation that underlies your posts that many Eastern judges are Catholic, while many Western judges are Jewish. It is very doubtful this is true.

  54. Sarah Says:

    RE: #34 There are more than 2 alternatives and I prefer the one that allows me to “get on with my life”.. . . . . not really related to the strict economics of the matter. “Years of lawsuits” - no doubt costing hundreds and hundreds of thousands of dollars with an uncertain outcome - sounds to me like a risk and possible waste of energy and resources.

    Well, if there are more than those two alternatives I would be delighted to hear them. But so far, it is demonstrable that those two alternatives are the ones in play, and as I have stated, it is far far better to depend on the state courts than ECUSA leadership for any justice, clarity, objectivity, or truth-seeking.

    I do agree that the years of lawsuits are not really related to the strict economics of the matter for EITHER side. If ECUSA were wanting to be practical there would be negotiation. But ECUSA does not wish to be practical they wish to own the symbols of what they once were, and they most certainly do not wish their competitors to own those symbols.

  55. Reason and Revelation Says:

    Sadly, Anglicanism, being derived from Catholicism (and Judaism), has a sacred affinity for its churches.

    I think that DioSC should let all the churches go that want to go and meet them on the flipside with the new province. If for some reason 815 outwits DioSC, then at least a few parishes went free. The idea that a pack of Wiccans could come in and outvote everyone for the property is pretty absurd. This is not the same time as it was 6 years ago or even 3 years ago.

  56. saj Says:

    #22 and #43 and having catholic supreme court justices caused the vote against partial birth abortions? I am a solid reasserter; however, I do not accept that the courts in these actions are doing anything except interpreting the state real estate laws as consistently as possible. I am in North Florida and the churches here who have left their property without dispute have all flourished and are doing well and moving on and past this thing. The ones (primarily in Jacksonville) who stayed on property are just now ( a couple of years later) leaving their properties after long disputes and just now beginning to go through the process of planting in new spots (after the courts ruled against one such church). One such church stopped paying the mortgage payment (escrowing the funds for the hopeful purchase of the building from the diocese) and recently the loan was called and the diocese had to anti up. What is right about using a property and paying nothing on the mortgage? This post will probably make some of you mad but we orthodox are not showing our best side in these property disputes. In the years to come if TEC finds itself outside of the Anglican Communion there may be some pressure about properties but that will be years to come and in the mean time those congregations that let go and get out are being blessed. Its only money and our Father owns all the cattle on all the hills.

  57. NCAngalican Says:

    I think this takes the wind out of anyones sails who pointed at TEC and DioVA for not dropping the lawsuits against the CANA parishes. For the sake of integrity and consistency, the DioSC should have been the first entity to heed the exhortation in the Tanzania communique to drop all property lawsuits. As far as Im concerned, they have lost all credibility in referencing that document whatsoever.

    This does not remove guilt from All Saints for not working more cooperatively with their Diocese, either. I think a fair share of blame is due all around, but certainly repentance and the sacrament of reconciliation is in order.

  58. Bill Street Says:

    Well, perhaps with the establishment of this favorable precedent for the TEC the Diocese of South Carolina will this time be rewarded with their choice for Bishop.

    Then after September 30th when the diocese feels it must leave the TEC, 815 can use the St. Pawleys v. Diocese of South Carolina precedent to take control of all diocesan properties and install someone like Bishop Spong to reenlighten the new Episcopal Church.

    I cannot understand how two orthodox bodies thought they could win by going to court!

  59. Sarah Says:

    RE: I think this takes the wind out of anyone’s sails who pointed at TEC and DioVA for not dropping the lawsuits against the CANA parishes.

    Im not certain how this would be when it is my understanding that the AMiA sued the diocese . . . and TEC and the Diocese of VA have sued the CANA parishes.

    RE: For the sake of integrity and consistency, the DioSC should have been the first entity to heed the exhortation in the Tanzania communique to drop all property lawsuits. As far as I’m concerned, they have lost all credibility in referencing that document whatsoever.

    They cannot drop a lawsuit for another entity.

    I suspect that they will rightly continue in referencing that document . . .

  60. NBS Says:

    What a tragedy for South Carolina. I see Bishops Salmons actions in this case as every bit as bad as sexual improprieties in the conservative parish out west and the (alleged) financial improprieties in Colorado. I wish Bishop Salmon could see how his actions have betrayed the cause.

  61. NCAngalican Says:

    #59, I did not realize All Saints AMiA was the first to bring this into civil court. If so you are correct on that point. I considered the public notice filed by DioSC to be the first stone, though not a legal one, I suppose.

  62. Gloria Says:

    It does not pay to comment, without all the facts. BUT there is one glaring fact everyone is ignoring!

    Bishop Salmon did NOT sue All Saints-AMIA, twas the other way round.
    The Diocese and +Salmon ANSWERED All Saints suit, something he was required to do under the canons of SC.

    To be sure, it IS a mess, the timing is awful.

    But, I think this judge stepped way out of bounds. One would hope that if there is an appeal, that the Dio. of SC and All Saints can once again try arbitration, this time with both having a lot to lose.

    Pray for us here in SC,

  63. NCAngalican Says:

    #62, apologies about that mixup.

  64. rick allen Says:

    On the legal meaning of hierarchical churches.if I recall correctly, one of the landmark cases in this area concerned the Presbyterians, who of course have no bishops, and elect representatives to Presbytery, Synod, and General Assembly. What the court found was a hierarchy of institutions, such that the local congregation had no authority to declare its real estate at the sole disposal of its local members.

    In other words, the standard, just because it uses the term, hierarchy, is not dependent on bishops. A representative body, like a Presbyterian Presbytery, counts.

  65. DaveJ Says:

    As Ive said time and time again, the SC situation is almost surely the fate of the departing DioVa parishes.

    The memberships of Truro, Falls, et al could have walked out the front doors, left the keys in the narthex and started construction on new facilities within weeks with the size and finances of their congregations.

    And Id bet the the Diocese would have been begging someone to buy the old properties at bargain basement prices within 36 months.

    Instead, the Diocese wants a win against the departing parishes and certain personalities among the departee leadership are vested in giving Bishop Lee one last black eye.

    Christians in court - what a witness to the world.

    How long did the Pawleys thing take? Seven years? How much more money could have been spent on evangelism and mission by AMiA over that time had they simply walked away instead of fighting this legal battle?

  66. ettu Says:

    #65 Agreed - 100% - it is unfortunate when anger and the desire for revenge clouds Christian and secular judgement - as some say Living well is the best revenge and , in this situation, that implies getting on with mission and not being held hostage to a drawn out, acrimonious civil process

  67. strugglingalong Says:

    I considered the public notice filed by DioSC to be the first stone

    incorrect #61, the diocese responding to all saints.. All saints did a detailed title search and the diocesan chancellor got a phone call about this, to which the diocese responded. This has been the pattern through this mess.

    Chuck Murphy has an enormous amount to answer for. If he had taken the communcal route in his own diocese this all could have been avoided.
    Especially fatal was the awful decision by all saints to sue the diocese.

  68. css Says:

    #65, Dave, the diocese is not interested in a win, here, the problem is with blatant unilateralism. The diocese wants the diocese to have a common life.

  69. Pb Says:

    There is a Georgia case holding that a Southern Baptist congregation is a member of a hierarchical church! I guess it lies in the eye of the beholder.

  70. DaveJ Says:

    css, I dropped a few words. I believe some in the Diocese of Virginia (ie some of the members of the Standing Committee) see this first and foremost as an us vs. them situation, and therefore it is important for them to have a clear victory over the departees. For some on both sides in VA, the fight is not about the most beneficial outcome possible, but about winning and losing.

    Still, I have to say I fully understand and agree with Bp Salmons position in the SC case, and I agree with Bp Lees position in the Virginia case.

  71. Arthur Says:

    Perhaps the thing for the D. of SC to do now is GIVE the land to the AMiA. If the land had been given or at least sold very cheaply, this lawsuit would not have taken place. Oy, the devil is working overtime.

  72. JD Says:

    I agree with 65.

    Re: the first shot in Va, # 59, its pure fact that the separatist congregations filed the first cases. Of course, they claim that they werent really lawsuits, but given that their stated end goal was ownership of the property, thats implausible. The Diocese and TEC then responded by filing a different set of cases.

  73. Petesie Says:

    #53 I did NOT post that there are more Jewish judges in the West, I did not even mention Jewish judges.

    I do agree with Catholic Mom that there are more RCs on the bench in the East than in the Western US mostly because there are many more highly educated, politically-connected and influential Roman Catholics in states such as Massachusetts than in Oregon.

    bACK TO THE THREAD: Poor Bishop Salmon. I think he had to take this step, it was his legal, moral, fiduciary duty as head of the Diocese.

    Unfortunately, I believe this case sets forth very typical reasoning in most state courts. California is an anomaly one canNOT look at the judgments there and expect the same in any other jurisdiction.

    #71: Thats an idea; but then would not the Bishop and Diocese be open to suit by TEC, any of their own members who are parishioners but wish to remain TEC??

  74. James W. Says:

    DaveJ: I actually disagree with you about Virginia state law. The SC decision has no precedential value anywhere except on courts that fall below that particular SC court in the respective heirarchy. I dont know Virginia law well enough to make a confident prediction, but have heard that it takes a different approach in key areas from SCs approach.

    Ruidh - I would humbly suggest that you are a little bit too overconfident in what you write. A very good argument can be made (and this is the base of the California reasoning) that the courts must only look to the actual deed, and not make decisions about what kind of church governance the church has, and that for the courts to determine what governance style a given church has is the violation of the free exercise clause.

    I would urge conservatives to argue that 1) TEC is not so heirarchical as is made out (there is ample evidence out West of blatant ignoring of certain canons with the full approval of the bishop), 2) that TEC is part of the Anglican Communion as per the constitutional preamble but that TECs House of Bishops are contradicting TECs heirarchical status by refusing to so submit, and so therefore have undermined TECs theological claim to be heirarchical; 3) that if TEC was so serious about the heirarchical structure, that it could require its churches to title their property in TECs name; 4) that the governance structure of any given church, and especially where contested, is ultra vires of the courts in light of the free exercise clause; and 5) that therefore the only constitutionally permissible determinant of property ownership is the name on the title.

    In legal matters, as in other things, California tends to be more liberal in many areas, whereas SC tends to be more conservative. The heirarchical church theory is the more conservative theory. What the USSC will decide upon is anyones guess.

  75. fishsticks Says:

    Interested readers should check out the decision of the South Carolina Court of Appeals, which you can find here. If you read it, you will see where this judge went wrong re: the trust.

  76. Dale Rye Says:

    Re #74: While all your arguments might make sense as new propositions, they squarely contradict the established law in every state of the union until about 80 years ago and in the majority of the states to this day. The issue is precisely whether a denomination has the power to determine what kind of governance it will have without court interference. If it has determined that final decisions will be made by congregations, that is how it should be. However, if it has decided that final decisions will be made by a regional or national authority (or by the Vatican, for that matter), it should have that right, too, without state interference.

    People who join a denomination with Presbyterian in its name are on notice that decisions are going to be made by presbyteries and not by vote of the local congregation. People who join a denomination with Episcopal (or even Anglican) in its name are on notice that local congregations will not be regarded as independent, but as subject to the oversight (episcope) of some higher authority. When they join the Roman Catholic Church, folks know that Rome is part of the deal. They should not have state assistance in reneging on their agreement to comply with the groups clearly understood rules about how binding decisions are made.

    This is not a peculiar rule applicable only to churches. If I choose to get a Visa card from Bank of America, I am going to be bound by the terms of the banks cardholder agreement, including its dispute-resolution provisions, even if I do not agree with them. If I dont want to do business on those terms, I can always get another card or pay cash. I have no right to make BoA comply with my terms. Under the terms of the agreement, I have no right to take the bank to court without submitting the claim to binding arbitration.

    Similarly, if I join an Episcopal church, I am going to be bound by the terms of the denominations Constitution and Canons, including its dispute-resolution provisions, even if I do not agree with them. If I dont want church membership on those terms, I can always join another denomination. I cannot make TEC accept my terms. Under the terms of the agreement (Canons), I have no right to take a dispute to court without submitting the dispute for resolution in an ecclesiastical forum. Just as in the case of an arbitration award, the courts in most states will not substitute their judgment for that of a church decision-maker that both parties had voluntarily agreed to obey.

    The South Carolina decision does not say that All Saints does not own or control its property. It says that the right to determine who speaks for All Saints (the majority of the congregation or the vestry recognized by the diocese) is to be determined by the dispute-resolution mechanisms that everybody agreed to when All Saints became an Episcopal parish. A disappointed litigant in that forum has no right of appeal to the courts, any more than someone who is disappointed by Bank of Americas pet arbitrator.

    I am mystified as to how it would be ultra vires for the courts to enforce a decision made in accordance with episcopal/presbyterian/connectional principles within a denomination that accepts those principles, but not for the courts to enforce a decision made in accordance with congregational principles in a denomination that has consciously rejected those principles out of theological conviction. The first is not in conflict with free exercise of religion, but supports it; the second clearly interferes with a religious groups ability to exercise its faith in the manner that they (not the courts) believe their faith requires. It also has the effect of establishing one form of church government as the norm, while other forms (historically and demographically far more common) must justify their procedures to state authority.

    What the US Supreme Court will decide is actually pretty clear. It will say that over 217 years of precedents have left the determination of land titles and similar property issues up to the states. The current membership is probably the least likely in decades to make an essentially legislative decision to federalize church property law. The result may be untidy, but it is no more so than allowing each state to determine the age of consent for contracting a valid marriage. If I were a 15-year old girl in Texas, I might find it unfair that my cousin in Mississippi can get married when I cant, but nobody ever said that the law must be identical in every state.

  77. James W. Says:

    Dale: Some problems with your argument:

    1. YOU say TECs policy is such and such. But that is your opinion. Others may have a different view. So, fine, you say, the canons agree with me. Okay, but if evidence can be adduced showing that obedience to the canons is a local option, then surely, the overall church cant declare that absolute obedience to the canons is mandatory. Their own actions deny their statements. You imply that certain church principles are blatantly clear to the courts - they arent. You imply that the courts should accept Dale Ryes determination about what church principles should be. Why? Why shouldnt Chuch Murphys or Martin Mynns version of Anglican polity be accepted?

    2. The Dennis Canon was purportedly passed in 1979. If the precedent was as ironclad as you suggest, there would have been no reason to have passed the Dennis Canon.

    3. Many TEC churches were created and in existence well before 1979. The Dennis Canon represents an implied trust created and imposed on local parishes.

    4. The Church is not a credit card company. I know that liberals probably see it that way (i.e. they have all the power and we are the consumers who take their c**p whether we like it or not, but that is not what the Church is supposed to be).

    5. If we accept the argument that TEC is a heirarchical church, then why should that heirarchy end with the General Convention in light of the constitutional preamble?

    6. How many parishioners know about the Dennis canon? Could it be that there is a fraud being perpetrated by the national church upon local parishioners?

    I say for the courts to resolve these issues is interference in religion. The Episcopal Church is very capable of retitling its parishes into the name of the diocese or the national church. There is NOTHING that is preventing TEC from doing so. TEC should not be permitted to expect the courts to enforce a certain controversial theory of church governance to defeat the legal titleholder in a property dispute.

    Let me throw this in for you Dale. Lets say that TEC passed an amendment to the Dennis Canon saying that any property that has in the past ever been used on church business be subject to the Dennis Canon provision. According to your theory, the church should then be permitted to sieze the personal property of individuals who leave the church. That would be manifestly unjust and an improper enforcement of church doctrine by the secular courts. And it is the same for the courts to enforce the Dennis Canon.

  78. JM Says:

    So, DC, if you are Muslim, you get to follow Sharia law because everybody knows that is what your religion follows regardless of the states laws? I dont think so, especially in the area of real estate and title to property.

    There is, of course, a genuine issue when an entity owns property: Who can act for that entity? Is it the board of directors (vestry)? And who is the legitimate, elected board or vestry? Even your credit card company would have a hard time claiming real property owned in the name of an affiliated corporation.

    This is not to say that a church cannot be hierarchical, only to argue that if the Big Church wants ownership of all the property it should arrange to have its name on the deeds.

  79. ettu Says:

    #74 I am omingin to a very detailed discussion a bit late but could not help noticing the following from your post I would urge conservatives to argue that 1) TEC is not so heirarchical as is made out (there is ample evidence out West of blatant ignoring of certain canons with the full approval of the bishop), I would suggest your words might be amended - either a church is hierarchical or it is not - I could not help thinking of the old saying But, Im only a little pregnant! I suggest it is an all or none proposition in both cases. Your words weaken your cause a bit.

  80. Dale Rye Says:

    Re #77: 1. The issue is not about the meaning of the Canons, but about their enforceability. I dont think there is any significant difference between +Chuck Murphy, +Martin Minns, and me on what the TEC Canons say or mean. The difference is that I believe that my parish and diocese are bound by them while they do not. I believe in episcopal governance, while these two episcopoi do not. As #78 acknowledges, the issue is who has authority to speak for the parishes in the Episcopal Church. Is an agreement between the parishes and the diocese that resolves that issue enforceable like the affiliation agreement between a parent corporation and a subsidiary? I say yes (as do the South Carolina courts) while many of you say no (like the California courts).

    2. The Dennis Canon was passed in 1979 because nobody had imagined that any court would feel free to disregard the common-law trust relationship between a parish and its hierarchical denomination before the California courts started doing it. It was an effort to restore the status quo ante, not to do something new. That is also why nobody minded before the 1970s whose name was on a deed, since whoever held legal title had a fiduciary duty to the parish, diocese, and denomination. It was only after some states purported to abolish that duty that General Convention tried to make it more explicit.

    3. Canons are not like the laws of the Medes and Persians that could not be amended. Canons can be repealed or amended as well as adopted. The General Convention is just as free to pass canons binding on all TEC congregations (including those that disagree) as the US Congress is free to pass statutes binding local governments (including those that disagree). If General Convention could not pass authoritative canons that differed from the existing rules, it would not exist. To repeat, the Dennis Canon was not an attempt to impose a new trust relationship on independent parishes, but an effort to recognize the trust that already existed at common law. At ecclesiastical law, of course, an independent parish is an oxymoron, like square wheel; the definition of a parish (as distinct from a local church in a congregational denomination) is that it is subordinate to a higher authority.

    4. The Church is not a credit card company. However, it is an organized society like a municipality or secular corporation. Like all other organized societies, it can only function properly if its members agree to follow the rules established to run the society, including the rules for amending the rules and the rules for resolving disputes about the rules. Otherwise you have chaos, and our God (mine at least) is dedicated to bringing order out of chaos.

    5. The difference is that the TEC Constitution and Canons have always provided that the General Convention and the national ecclesiastical courts have jurisdiction over the dioceses and parishes (as did the Canons and Articles of the Church of England before them), while there is no hint that anyone anywhere in the world until the last three years even suspected that the Anglican Communion might have jurisdiction over its member provinces. The US belongs to the International Red Cross, but that doesnt mean that the RC can unilaterally assume legislative authority to reverse US laws. Acknowledging membership in the Anglican Communion did not abrogate the final authority of General Convention.

    6. People are bound every day by rules they may not be aware of. How many people read the Income Tax Code? We expect them to obey it, nevertheless. Ignorance of the law is no excuse. I am flabbergasted that you blame the national church for local ignorance of a well-publicised rule that went into effect 28 years ago (and that codified a rule that was in effect for almost 2000 years before that). I dont think most Episcopalians are that stupid. Do you?

    I still dont understand your argument that for the courts to favor denominations over parishes is interference in religion, while for the courts to favor congregations over denominations is neutral. Your suggestion that TEC require its parishes to retitle in favor of the national church is absurd. How in the devils name (and I use that phrase on purpose) are they supposed to do that if they have no authority over the parishes? The NOTHING that is preventing TEC from doing so is people like you and the California courts that have rejected the traditional organization of the Catholic Church. That controversial theory of church governance was the only known theory of church governance down to about 1517. If you dont like it, fine, but you shouldnt call yourself an Anglican if you dont agree with a basic Anglican principle.

    I have a mortgage on my house. Technically, that makes the trustee the legal owner of the property while I only have an equitable interest. That is exactly the same relationship that the legal owner of the title to Episcopal Church properties had under common law to the equitable owners. Are you suggesting that since the trustee has legal title I shouldnt expect the courts to enforce my interest?

    Your final example is also absurd. Again, the issue is not whether All Saints owns its own property, but who gets to speak for All Saints. Private members of the congregation are independent individuals who can speak for themselves. General Convention cannot speak for them or take their property. Being a corporate rather than biological person, All Saints can only speak through an authorized spokesman and it can only act in accordance with its corporate purpose (which is to be an Episcopal parish, not an independent congregation). By incorporating as an Episcopal parish, rather than as a Baptist tabernacle, All Saints submitted to the authority of General Convention and made the Episcopal Church its authorized agent. When it did so, it gave up any claim it may have had to independence. It simply does not exist except as a subordinate entity. Remember the unpleasantness in the 1860s when several states claimed the authority to unilaterally revoke their submission to a higher authority? Same principle here.

  81. James W. Says:

    Dale:

    1. You are claiming a church polity argument that existed BEFORE the Dennis Canon. You are claiming that this polity argument is that no matter what TECs General Convention decides, its word is the absolute authority that is to be obeyed. Others would argue (see Akinolas recent letter to KJS) that TEC has departed from the catholic faith and therefore is in no position to enforce its claim to be the legitimate authority over parishes and clergy. There is a clear difference of opinion as to proper Anglican polity - why should the courts side with YOUR interpretation?

    2. You say that the Dennis Canon is church law and its meaning is clear. So it is. But the canon on who is permitted to receive communion is equally in force and equally clear. But TEC has chosen to allow parishes, dioceses and bishops to ignore the communion canon if they so chose. It has made certain canons to be LOCAL OPTION!!!! If certain canons are LOCAL OPTION, then how can you claim that TEC is a heirarchical church vis a vis the canons? If the priest and elected vestry of Parish A can choose to disregard Canon X with no penalty, then how can you claim that TEC is governed by canons which forbid parishes from disregarding them?

    3. The Preamble to TECs constitution DEFINES TEC. The definition rests in the Anglican Communion and the ABC. If the US Constitution defined the Congress as those representatives who have been recognized as acceptable by the international director of the International Red Cross, then it follows that someone elected that is deemed not acceptable to the IRC cannot be a member of Congress. Such a provision in the US constitution would place Congress under the IRCs authority. If TEC doesnt want to be so bound, they can amend their constitution.

    4. The Dennis Canon was an attempt, Dale, to impose an implied trust in TECs favor upon property legally held by another. You admit that it was done when some states rejected your version of church polity. The fact of the matter is that before the Dennis Canon was purportedly passed, the parish was the legal title holder to their property, and after it was purportedly passed General Convention attempted to claim that, regardless of what the title deed said, IT was the real owner.

    5. Dale, while there certainly are laws that we arent all aware of, there is a difference between that and actively leading people on. You are flabbergasted that most Episcopalians wouldnt know your version of church polity. You declare I don’t think most Episcopalians are that stupid. Do you? Uh, yeah, Dale. I am sure that if you ask most Episcopalians who are asked to contribute to Parish Xs capital campaign that they would be flabbergasted to know that they werent really giving to Parish Xs property fund at all, but rather to the General Conventions property fund. There is a REASON Dale, why TEC chooses not to publicize this. At virtually every parish I have ever been a part of, if this view of church polity was publicized as it relates to property, the parishioners would simply not have contributed. The bishops, dioceses and national church are simply not trusted.

    6. You say Your suggestion that TEC require its parishes to retitle in favor of the national church is absurd. How so Dale? You claim that this church polity is well known to all Episcopalians. You claim that it is beyond any doubt in any Episcopalian that the General Convention owns the property. So why not make that clear? The parish I currently attend was asked to do so by the diocese and did so (it is a very small mission and very dependent on the diocese). Your protest at this suggestion is evidence that you dont really believe that your church polity view is all that widely held within TEC at all.

    7. Many problems Dale with your title example. First is that under your example, you are the equitable owner and you are living in the house, but the legal owner paid for it (and you are paying them back). However, in the church, the legal owner paid for the building and currently occupies it. The equitable owner did not pay for it, does not use it, but merely passed a rule asserting ownership over it.

    8. Related to point 7 Dale, my example was not absurd at all. Parishes are corporate bodies. Vestries are the governing bodies of parishes. They speak for the parishes, just as I speak for myself as an individual. The only things that link parishes and individuals to the national church are canons and theological suppositions. If a canon or theological supposition can bind a corporate person, they could also bind an individual. If the national church was the legal owner of the parish property and they said we need people to run our local operations then you would be correct. But that is not the case. Legally, the parishes are locally incorporated bodies, which can legally align or disalign with larger bodies as they choose. You may think that it is unAnglican or unheirarchical for the corporate person of the parish to do so, but you should not be able to force the courts to enforce your theological opinion.

    What the vestries are saying is that TEC has departed from its position as part of the one, holy, catholic and apostolic church and so no longer has a heirarchical right to the property. This is a theological issue, Dale, and for you to insist that the courts agree with YOUR theological interpretation (as outlined in point 1 above) is a violation of the free exercise clause.

  82. Palmetto Girl Says:

    While everyone has been focused on Judge Coopers ruling, no one has noticed that the Pawleys AMIA congregation has shrunk to half of its size of three years ago. The congregation that is acknowledged by the Diocese and Judge Cooper as the original congregation is growing and moving into a new facility.

  83. Ethan Says:

    I am amazed that when religious bias in judges is concerned that its a fine thing for a judge to be RC as long as he rules pro choice, but when he rules in favor of a hierachical church structure, its trouble.

  84. Mark Says:

    I am thankful to God for the Bishops stewardship of the church property and I am glad the Diocese won the suit. I hope that other suits concerning TEC properties go the same way.

  85. Vernon R. Johnstone II Says:

    This is wonderful news, especially the part of Judge Coopers ruling that calls for the schismatic AMiA folks to be ejected.' Thank God for this legal and moral victory! Maybe the AMiA crowd should consider relocating en masse back to Rwanda. I volunteer to help with the eviction of AMiA from TEC property.

  86. Vernon Johnstone Says:

    This is wonderful news, especially the part of Judge Coopers ruling that calls for the AMiA to be ejected.' Thank God for this legal and moral victory! Maybe the AMiA people should consider relocating back to Rwanda. I will volunteer to help with the eviction of AMiA from TEC property.

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