The Diocese of South Carolina filed two motions on September 1 with the State Supreme Court, requesting a rehearing of our case and the recusal of the justice casting the deciding vote. Both are unusual steps and legal counsel for The Episcopal Church (TEC) has now responded to our motions. Because the issues at stake in this case have implications far beyond our Anglican family, they merit public comment.
Ownership of church property
The Diocese of South Carolina and its 54 congregations provide a place of worship for 23,000 faithful members across the Lowcountry of our state. Most of those congregations will lose their place of worship to TEC if the current ruling of the court stands as is. Many of those affected are colonial parishes like St. Philip’s and St. Michael’s whose existence predates TEC by more than 100 years. How can an unincorporated, New York association claim ownership here?
The majority in this case has made multiple legal assertions, among the most problematic of which is that a church body can lay claim to another’s property simply by saying it is so. The General Convention of TEC asserted such a unilateral claim in 1979. The problem with affirming such a claim in South Carolina is that it requires ignoring 300 years of clear legal precedent for how to establish an ownership interest in property.
The well-established legal principal is that the party granting anyone an interest in their property must do so in a clear, unambiguous written form. TEC failed to establish a trust interest in our property, of any sort, that can be recognized under existing S.C. legal precedent. To grant TEC such an interest now is to grant it favored status over the diocese and its parishes, establishing one church body over another. This is inconsistent with opinions of the U.S. Supreme Court that truly “neutral” principles of state law must be applied here as they would in any other case.
If you belong to any religious body, this ruling should concern you. It establishes the precedent that your property interests are not subject to the same rules as everyone else and you can be treated differently. In this particular case, it means any group you are associated with can make a legal claim to your property, simply because they say they have decided they have one. As Justice Kittredge noted in his dissenting opinion on this ruling, “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.”
Legal due process
Concerning as the many property issues of this case should be for all, more troubling should be the due process issues raised by this case. The churches being deprived of their places of worship by this ruling are doing so on the basis of facts never established at trial and legal issues never adjudicated there. These are basic legal rights we would all reasonably expect to have if it was our own property in jeopardy.
The failure of due process protections Sandlappers should find most troubling is the conflict of interest displayed by the justice providing the deciding vote in this ruling. One justice on this court was an active member of a congregation that voted to leave TEC. With her spouse she helped form a new TEC congregation and he attended the organizing convention for its new diocese where they called a new bishop and presumed to make changes to the governing canons of our diocese. It was a meeting initially called and organized using our name, before being restrained by the courts. By the opinion of this justice, the parish, denomination and the diocese of which she is a member stand to benefit from a $500 million property windfall. There could be no clearer example of a conflict of interest.
The South Carolina Code of Judicial Conduct is crystal clear. It is the responsibility of the judge in a case — if the parties to the case before them do not waive that right — to reveal even the possible appearance of a conflict of interest and to recuse him or herself. Neither of those things happened. Every citizen should be concerned. If so egregious a conflict of interest is allowed to stand here, what confidence can any have before the highest court in the state that justice will be administered impartially?
While the outcome of our case touches our members deeply, it also has significant implications for all South Carolinians, for people of faith and for people who simply wish to see justice done. Justice for all is a bedrock principle of our nation and its judicial system; the current ruling in this case does not rise to that standard.
Jim Lewis is canon to the ordinary of the Diocese of South Carolina.