Though the Supreme Court declined to hear their case, the leadership of the Diocese of South Carolina continues to be encouraged as their battle continues.

The morning of Monday, June 11th, was depressing, and not just because the beginning of the week snuck up on me or because clouds dampened the mood and didn’t show signs of clearing. As I sipped at my coffee and rummaged through the ad-happy digital frontpages of South Carolina’s newspapers, I stumbled upon a headline in the Post and Courier that immediately induced my downheartedness: “US Supreme Court declines review of Episcopal property dispute from South Carolina.”

I was cognizant of this possibility, though for some reason my generally pessimistic (or realistic, as I prefer to define it) outlook on life gave way to an optimistic hope on an issue that Dr. Oran Smith has called “one of the most important religious freedom cases in South Carolina history.” For that very reason and for months everyone at Palmetto Family Council dedicated many hours to the Diocese of South Carolina in their case against the liberal Episcopal Church in the United States (ECUSA) denomination headquartered in New York. We all knew the Supreme Court (SCOTUS) could rule against the conservative Diocese, but I wasn’t necessarily prepared for the news – justice and truth were on our side, after all.

For years now, the ECUSA has progressed further down a theologically liberal rabbit hole – a path that includes denying the centrality of Christ, questioning the authority of Scripture and marginalizing leaders who hold traditional beliefs on gender and sexuality issues – making the position within the denomination for a conservative chapter like the Diocese of South Carolina nearly untenable.

Finally, the situation came to a head in 2012. Under the leadership of Bishop Mark Lawrence and following the example of other conservative chapters, the Diocese of South Carolina removed itself from the ECUSA and aligned instead with the Bible-believing Anglican Church in North America, igniting what has become years of legal disputes over at least 28 parish churches worth millions of dollars. These properties are titled and held in the name of the Diocese of South Carolina.

The South Carolina Supreme Court ruled on The Protestant Episcopal Church in the Diocese of South Carolina v. The Episcopal Church in 2017 – a 3-2 ruling favoring ECUSA’s ownership of the property. Following a decline of a petition to rehear the case by the South Carolina Supreme Court despite clear judicial abuse (thanks in part to Justice Kaye Hearn failing to recuse herself despite a clear conflict of interest), the case made its way to the highest court in the land.

As you know by now, SCOTUS followed the example of the South Carolina court. Seemingly the last hope for the Diocese was now gone.

While processing the news, I couldn’t help but think of the estimated 23,000 Christians belonging to the Diocese of South Carolina who would lose their place of worship. The same buildings that many of their ancestors paid for and worshipped in for three centuries. Where would they go? What was the mood?

Tuesday morning rolled around and I rapped three times and stepped through the pale-colored doorway located a few feet away from my desk. That door opens into the office of my colleague and Palmetto Family’s point man on this issue, Erik Corcoran.

Erik leads over 350 pastors in Palmetto Family’s pastor coalition, the Nehemiah Network. Bringing those pastors together in the first place required a small miracle, but mobilizing them to work together – especially on an issue that fell on denominational lines – would be nearly impossible. But in fact, Erik had accomplished the nearly impossible – uniting hundreds of diverse pastors from over a dozen different denominations in defense of their Christian brothers and sisters of the Diocese. I wanted to share with him the news and find out if he had been in touch with the Diocese.

He had not, so immediately following our conversation, Erik called the Reverend Canon Jim Lewis who has been the liaison between the Diocese and Palmetto Family. Though the conversation began with a somber tone, it almost immediately bent to the upbeat and positive, to my confusion and surprise. “I wanted to call Reverend Lewis to let him know that we are praying for him and to get his thoughts,” said Erik. “But he immediately changed my perspective on the situation and what the future may hold. They’re ‘cautiously optimistic’ after the ruling.” I needed more details, so I began an email conversation with Reverend Lewis.

“What can be said is that denial has nothing to do with the merits of the case. It is not a subtle way of passing judgement, said Reverend Lewis. He continued: “In this instance, the same day they dismissed our case, they also dismissed the Eden Prairie case of a Presbyterian congregation successful in leaving their PCUSA denomination. Parallel facts. Opposite outcome.”

If the situations in the Eden Prairie case and Diocese of South Carolina case are parallel, why then would the Supreme Court dismiss two cases despite their incongruent outcomes on the same day? To get the answer, you must understand the foundational legal argument in this case: Neutral Principles of Law.

In a controversial 1959 article in the Harvard Law Review, Professor Herbert Wechsler first introduced the term “Neutral Principles of Law.” Shortly thereafter, courts began applying Neutral Principles to cases involving control of property in hierarchical churches – exactly like The Protestant Episcopal Church in the Diocese of South Carolina v. The Episcopal Church.

The basic philosophy behind the Neutral Principles of Law is the belief that courts should disregard church doctrine in resolving church ownership disputes. Since they are inherently secular, courts must adhere to secular, and therefore, neutral values. Neutral Principles leaves no wiggle room for religious or doctrinal consideration in property deeds, local parish charters, national church constitutions or state statutes.

Unfortunately, courts across the country – both state and federal – vacillate in their interpretation of what exactly “neutral” means. Some courts apply the principles by following well-established state laws to settling property disputes (called the “strict approach”); whereas, other courts do not believe national churches should be bound by state law and instead defer to their unilateral rules and canons (defined as the “hybrid approach”). Courts following the hybrid approach believe that requiring a national church to comply with ordinary state law would impose a constitutionally impermissible burden on the national church by violating the First Amendment and the Free Exercise Clause.

The “hybrid approach,” though, fails in the original purpose of the Neutral Principles – to be neutral and secular by following state property laws. By removing from national churches the burden of state laws and by deferring to their rules, these courts instead place their thumb on the scale in favor of national churches over local parishes.

This reasoning is exactly what the South Carolina Supreme Court used to decide the Diocese of South Carolina case.

In their petition to the Supreme Court to review their case (a Writ of Certiorari), the Diocese explains that, “[i]f this dispute arose between two secular organizations, or between a religious and a secular organization, the party standing in Petitioners’ shoes would have prevailed.”

Despite the Diocese case being called by some as “possibly the worst application of so-called ‘neutral principles’ on record,” the Supreme Court has made a habit of declining these cases and passing on the opportunity to clarify the interpretation of Neutral Principles. And that explains how two cases with nearly identical facts, but opposite outcomes were turned down by the Supreme Court.

Obviously, my curiosity still revolved around why the Diocese was “cautiously optimistic” about the ruling when everything I was reading suggested that this denial ended the matter.

When asked this question, Reverend Lewis said that, “[i]n its argument for why the Supreme Court should not review our case, The Episcopal Church attorneys argued it was too ‘fractured’ to be used for setting precedent. On that one point, we would agree. The South Carolina ruling is composed of five separate opinions that do not agree on either legal principles or outcomes. Interpreting what the conflicting legal opinions in this ruling actually mean and how they will apply will require further adjudication by the courts. We continue to believe the facts and law of the case favor our positions.”

As the case returns to the Dorchester County court later this summer where it originated and a judge considers several motions one of which is the motion to execute the South Carolina Supreme Court’s decision, Reverend Lewis and the Diocese appear confident that this motion cannot be implemented until “numerous significant and complicated legal questions are answered.” The Diocese then can hope and pray that because the facts and laws indeed favor their position, the legal process still has time to correct the situation. Even if that means a second trip to the South Carolina Supreme Court.

But Reverend Lewis isn’t content with just hoping and praying alone: “Please pray for the courage and resolve of all the people in our congregations. And pray in particular that we might all keep the first thing first, which is the faithful proclamation of the Gospel of Jesus Christ. The litigation too easily becomes a distraction from the ministry we know we need to be about. The Diocese is deeply grateful for the prayerful support of our brothers and sisters in Christ across the state of South Carolina.”

Photo Credit: Diocese of South Carolina Facebook Page

Briley Hughes

Communications Director