The Watcher Cat

The Watcher Cat

Sunday, January 6, 2013

Firing on Fort Sumter

Per The Lead, I see that the Breakaway Diocese of South Carolina has filed a civil lawsuit against the Episcopal Church ("TEC") and, presumably, the continuing Episcopal Diocese of South Carolina, seeking an order from
the court to prevent TEC from infringing on the protected marks of the Diocese, including its seal and its historical names, and to prevent it from assuming the Diocese’s identity, which was established long before TEC was formed. It also asks the court to protect our parish and Diocesan property, including church buildings and rectories, which our forefathers built and even shed blood over, and you have maintained without any investment of any kind from the national church.
The filing of the suit is remarkable for two reasons: First, it would appear to assert that the Breakaway Diocese, even though it has, to use its own word, "disassociated" from the national church, remains the only Episcopal diocese in South Carolina. TEC should be, effectively, prohibited from having a diocese within the same boundaries as South Carolina; secession precludes replacement, in their view. This claim is far-fetched; I really can't see the courts preventing TEC from having a Diocese of South Carolina, especially in view of Jones v. Wolf, in which the Supreme Court reaffirmed that the First Amendment "requires that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization." And, if TEC can have an Episcopal Diocese of South Carolina, then how can the breakaway Diocese retain exclusive rights to a name that suggests an affiliation that no longer exists? (I suppose they might win the seal as a trademark, though, if they get a sympathetic judge. That question seems pretty wide open, as far as I can see, though the seal might be required to be modified.)

Moreover, the Breakaway Diocese asserts that it has title, free of any trust interest on behalf of TEC, or the Continuing Diocese, of all property within the historic boundaries of the original diocese--although the communication states that "We respect the decision of those who wish to remain with TEC but believe they must also respect the identity and property of the Diocese of South Carolina, which has been painstakingly built over two centuries."

As I've previously written, I think that the claim of the invalidity of the Dennis Canon and the trust created thereby seriously overstates the impact of All Saints Parish v. Campbell, which turned on the fact that the quitclaim deed in question had been issued by the Diocese nearly a century prior to the property dispute, 70 years prior to the Dennis Canon's adoption, and eighty years prior to the diocese's explicit ratification of the Dennis Canon--all of which events happened decades before the consecration of Mark Lawrence as bishop of South Carolina. In All Saints, the Supreme Court found that any trust created could not include the property at issue, because the Diocese had abandoned any claim on the property before the creation of any trust under the canons of either TEC or the Diocese. Here, however, there is no dispute, as far as I can tell, that when Mark Lawrence became bishop, TEC had enacted, and South Carolina had adopted, canons creating a trust in all property within the Diocese on behalf of TEC.

Even if I believed (as I do not) that the Diocese had a right to secede from the province, then-bishop Lawrence* took his position as bishop subject to that trust, as did every member of the diocesan Standing Committee.

Now, TEC can bring causes of action based on breach of fiduciary duty, conversion and fraudulent conveyance within, at a minimum, three years after the transfers at issue, or discovery thereof. The quitclaim deeds were issued in November 2011. Thus, the Breakaway Diocese's action would, it seem to me, open it (as a corporation) and the individuals who took the actions to a very serious claim that the 2011 quitclaim deeds constituted conversion, fraudulent conveyances, and breach of fiduciary duty, in that they were issued with the intention of depriving TEC of its interest by the very trustees who owed TEC a duty to protect that interest. Obviously, there is no such thing as a slam dunk in litigation, which is part of why I have throughout advocated (and, where applicable, cheered) peaceful resolution to these property disputes, but I have yet to see a convincing--or, in fact, a plausible--argument as to why the Breakaway Diocese and its policy makers would not be liable. South Carolina's ecclesiastical authorities may have, a century and a half after the original Fort Sumter, made the same mistake that was made then.

*I know, I know; holy orders are indelible--but in what church is Mark Lawrence a bishop? The Church of South Carolina? It's certainly not not the Episcopal Church, and no other province has purported to consecrate him. In what world does Anglicanism support free-roaming bishops and upon what ecclesiological theory? I'm genuinely not trying to be snarky, here, but I don't understand how, having renounced his canonical obedience, and having been deemed by the Church which consecrated him to have abandoned his ministry (a decision which the courts clearly cannot review under the First Amendment), he can claim the title. Feel free to enlighten me in comments.


Vinnie Bartilucci said...

This is the first time I've heard a religion claiming their images, characters and narratives are trademarked or copyrighted.

Outside of the Scientologists, that is.

Anglocat said...

Just so, Vinnie; there is something of a resemblance, no? Thanks for reading, and all the best for 2013.

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Anonymous said...

Anglocat, you write "it would appear to assert that the Breakaway Diocese, even though it has, to use its own word, 'disassociated' from the national church, remains the only Episcopal diocese in South Carolina. TEC should be, effectively, prohibited from having a diocese within the same boundaries as South Carolina." This request for a declaratory judgement makes no such claim. You're building a straw man. The Diocese of South Carolina has made it perfectly clear that those who left the diocese and wish to reassociate with TEC and form a NEW diocese in the South Carolina Lowcountry have every right to do so. Furthermore, any such parish can leave with all their property and cash intact. What those parishes CAN NOT do is present themselves as the Diocese of South Carolina or attempt to assume the identity (including the history, seal, etc) of The Diocese of South Carolina, which is a registered legal corporate entity in the State of South Carolina. What those parishes which have decided to leave the diocese and re-affiliate with TEC must do is form a new diocese, presumably in accordance withing the confines of TEC's constitution and canons (although they're already off on the wrong foot there in their haste to reorganize, but that's not the concern of the Diocese of South Carolina).

Secondly, I believe you're being overly optimistic in your reading of the Wacamaw case. There is absolutely no evidence that South Carolina courts will by into TEC's cockamamie argument of "implied trust" (which is a legal oxymoron--that other courts have fallen for it doesn't speak very highly of the quality of what currently passes for legal education in our country).

As to whether the Diocese of South Carolina can be a "free floating" diocese, the vast majority of Anglican around the world affirm the idea of extraterritorial dioceses.

--Bryan Hunter, Charleston, SC

Anglocat said...

Dear Mr. Hunter,

First, thanks for your comment. Really; I'm about to explain in a follow up post, but that doesn't mean I don't welcome the view from the other side.

I wrote a full length response, but, to my chagrin, it's too long to post as a comment, so I'll post it as the next blog entry.

Thanks for your comment, and pressing me to think through these issues. I appreciate your taking the time, even though we disagree.

All the best,