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Plaintiff attorneys prepareBy Joy Hunter, Diocesan Communications Director and Jan S. Pringle, Public Relations Consultant

The three-week trial of the Diocese of South Carolina vs. The Episcopal Church (TEC) and The Episcopal Church in South Carolina (TECSC) ended July 25, with Judge Diane S. Goodstein, who presided, telling the parties what she wanted from them to assist in her deliberations.

Attorneys representing the Diocese, the Trustees and the Diocesan churches were given 30 days to create a three-page document describing the testimony given in court which explained the procedures they followed to legally separate from TEC, (such as amending their by-laws, giving notice of meetings, properly taking votes,  etc.) They were then to send those documents to the Court and to TEC and TECSC whose attorneys will have 30 days to respond in a similar fashion.

In essence, the judge’s last words reiterated what she said throughout the trial: The case will be decided on neutral principles of law, which means that the judge must apply the law to this case as it would any other – making no adjustments because it involves a religious organization. TEC and TECSC have opposed the application of neutral principles; essentially arguing that the judge should defer to their view on the issues since they are a religious organization.

Two Different Cases

Though there was some sparring between plaintiff and defendants, in some ways the two sides were presenting two distinct cases.

TEC and TECSC Pushes Hierarchy

Despite Judge Goodstein’s repeated admonitions that the concept of hierarchy was irrelevant and her decision would be based on neutral principles of law, nearly all of TEC’s testimony attempted to establish TEC as a hierarchical organization, which exerted control over member dioceses.  Rather than use that “buzz” word, they chose to frame the issue as one of subordination of the Diocese to TEC and of the parishes to TECSC.  However, the South Carolina Supreme Court has already decided that no matter the name used, the concept of what type of governance a religious organization has does not matter if the issues can be decided using neutral principles of law such as the law of corporations.

When TEC was reprimanded for directing testimony towards hierarchical arguments its attorneys began substituting the word “control” or “subordination” for hierarchy and at one point had a witness claim the organizational structure of the denomination translated into neutral principles of law. However no TEC witness testified that they could find the words subordinate or subordination in their Constitution and Canons.  Judge Goodstein, while not addressing that argument at the time, said later from the bench, she didn’t agree with that assessment.

TEC spent a good bit of time presenting documents showing the Diocese and its churches had been active in the denomination and followed its Constitution and Canons. Diocesan attorney Henrietta Golding responded, “If you’re a member of a club or fraternity, you abide by the laws. …There’s no relevance that the Diocese followed the Constitution and Canons. They were together at that time… We were members then.”

The Diocese of South Carolina’s Case

Attorneys for the Diocese, led by Alan Runyan and Henrietta Golding, meticulously presented evidence showing the Diocese and its congregations, many of whom predated and helped to form TEC, existed and operated independently from the denomination and took the proper legal steps as independent corporations to separate from the denomination, an unincorporated New York association.

Diocesan Chancellor Wade Logan, Canon to the Ordinary Jim Lewis and Treasurer of the Trustees Rob Kunes, testified for the Diocese as did 36 witnesses for the parishes involved in the lawsuit.  The parish witnesses testified about how each functioned independently and how correct actions by each were taken to disassociate from the denomination.

The Matter of Money

TEC attorney David Beers, through the testimony of Mark Duffy, who is the canonical archivist and director of archives for the national church, asserted that the financial relationship between TEC and the Diocese showed the Diocese and the parishes had benefited from their association with TEC.  Duffy’s testimony came under criticism when on cross examination it became clear that he had examined only funds which flowed from TEC to the Diocese but not funds from the Diocese back to TEC. When Nancy Armstrong, Diocesan assistant treasurer, replied to Duffy’s testimony, it was revealed that during the 200+ years of their association with TEC, the Diocese and the parishes voluntarily had given TEC $117 for every dollar received from them in grants of loans AND of that dollar, 70 cents had gone to support institutions and causes separate from the Diocese or its parishes.

History is History: Walter Edgars vs. Allen Guelzo

TEC ran into trouble with its expert historian, Walter Edgar, because they had failed to disclose his opinions when they identified him as an expert witness. The judge had created the rules for both sides to allow attorneys time to properly prepare for witness testimony.

Expert witnesses may give opinions in their area of expertise without regard to whether they have first hand knowledge, but lay witnesses may only give opinions on incidents with which they have first-hand knowledge. Popular historian and radio personality Walter Edgar, known for his National Public Radio show Walter Edgar’s Journal, was called first as a fact witness since TECSC had not disclosed his expert opinions. However, when he was not allowed to offer opinions, not having had first hand knowledge of the historical events he was called to discuss, he was limited to literally reading highlighted excerpts from Diocesan Convention Journals. “When he shifts from saying ‘this is what it says,’ to ‘this is what it means’ we’ve crossed into expert testimony,” warned Judge Goodstein.

Dr. Allen Guelzo, an expert in ecclesiastical church history, author of more than a dozen books including two which spoke to the history of the Episcopal Church in the late 18th and 19th century, was called by the Diocese to rebut the testimony throughout the case directed at the issues of “subordination” and “control”. Guelzo was allowed to include opinions in his testimony since neither TEC nor TECSC had ever asked during the preceding year and a half whether the Diocese would call any expert witnesses as the rules permitted them to do.

Listed among Dr. Guelzo’s many honors was a presidential appointment in 2006-2013 to the Council on the Humanities.  He also presently serves as a director of The Historical Society of the Episcopal Church and is an episcopal priest.

He testified that the Episcopal Church is not organized in such a fashion that its governance controls the dioceses and the parishes and nothing associated with TEC’s formation suggests that dioceses that formed it could not leave it as voluntarily as they joined it.  “If anything the authority and direction has, over the history of the Episcopal Church, tended to flow from bottom upwards. “ Guelzo also testified that there are no words of supremacy in TEC’s organizational documents.

Guelzo also spoke to the issue of the name. TEC had maintained that its name preexisted that of the Diocese and the parishes in that it used “episcopal” and “Protestant Episcopal Church” first. Guelzo pointed out that the word “episcopal” was in fact used in many other denominations and that 40 years (1749) before TEC was formed, the English parliament had called the Moravian church an “ancient Protestant Episcopal Church.” “Protestant Episcopal Church” was also used in Maryland and South Carolina before the Diocese and eight other preexisting dioceses formed TEC in 1789.

At one point, Mary Kostel, an attorney for TEC referred to documents written by Francis Vinton and A. C. Coxe, members of TEC’s clergy during the 1800s .  TEC had relied on the works of Vinton and Coxe in other lawsuits. She asked Guelzo if he would agree their work was known in the 19th Century. Guelzo said, “Yes they were known, but so was Jesse James.”  Guelzo then said that accepting the expertise of Vinton and Coxe on the power and control in the Episcopal Church would be like taking the commentary from the Tea Party as authoritative on the U.S. Constitution.

“Is there a page or a phrase, or a sentence, in either of those that says “‘A diocese may not leave?’”

One of the most memorable moments in the trial came on the ninth day when Diocesan attorney Alan Runyan placed copies of the 2009 and 2006 Constitution and Canons of The Episcopal Church on the witness stand and asked Bishop Clifton Daniel, who’d been called as a witness for TEC, to “turn to the page in those documents where it says a diocese cannot withdraw from the Episcopal Church and read it to us.”

Daniel made a remark about how long it would take to find such a page and Runyan rephrased the question.  “Is there a page or a phrase, or a sentence, in either of those that says, ‘a diocese may not leave The Episcopal Church without the consent of the General Convention?’”

Daniel answered, “I don’t believe so, but I may be wrong.”

“I’m sure it will be pointed out if you are!,” replied Runyan.

Judge Goodstein recalled the incident later in the proceedings.

When TEC attorney David Booth Beers tried to compare the current proceedings in South Carolina with rulings in San Joaquin, California, Diocesan attorneys objected and Goodstein responded, “It’s not relevant for this reason: I don’t know what [that] state’s position is regarding the analysis of church disputes. I don’t really care. What I care about is the state of South Carolina. My Supreme Court tells me what I do when I analyze church disputes.’ … In terms of whether or not the parishes in South Carolina and the Diocese in South Carolina were allowed to leave the national church, I’m going to make that determination on the basis of neutral principles of law under South Carolina law. I don’t care what happened any where else.”

Beers disagreed, saying hierarchy is part of TEC’s polity or organization and the judge responded, “I’m not sure that’s your polity and let me tell you why. I watched very carefully last week when Bishop Daniel testified and Mr. Runyan popped up with the Constitution and Canons. There was nothing written that says, “You’re here forever.”

In response to her last statement which she made with an exaggerated southern drawl, some in the courtroom laughed, drawing a reprimand from the Judge.

“I don’t say that to be humorous. It’s a very serious matter,” she said. “You want to tell me this is the polity of the church?  It’s not written. Seems to me it ought to be written. But it isn’t. It obviously happened to some folks. I’ve got that. But I’m not going to be bound by that. I’m just not. I’m going to be bound by South Carolina law.”

TEC’s Own Canons Prohibit the Denomination from Turning to Secular Courts

The significance of one cross-examination may have received little notice, but when Bishop Charles vonRosenberg took the stand on behalf of TECSC, Diocesan attorney Alan Runyan showed him the portion of the TEC Canons commonly referred to as “the Dennis Canon,” which seeks to impose a trust in favor of TEC. Runyan asked if he was familiar with it. He admitted he was. He then admitted that the Dennis Canon did not appear to apply to the property of a diocese but he was asking the court to interpret it to apply in this case. What happened next was startling. Runyan asked him if his asking a court to interpret this canon to make it apply to the property at issue in the case was not, in itself, a violation of the very same canons. vonRosenburg said, “I do not have that knowledge, no sir.”

Runyan then showed him a canon from the same document, which stated, “No member of the Church, whether lay or ordained, may seek to have the Constitution and Canons of the Church interpreted by a secular court, or resort to a secular court to address a dispute arising under the Constitution and Canons.” Runyan then asked him, “Bishop, before today did you know about this paragraph?” The Bishop replied, “No, sir.”

Editor’s Note: That is precisely what TEC has sought every time it has prosecuted this kind of litigation.

Bishop Lawrence Final Witness

On the 14th and final day of the trial Bishop Lawrence testified that - contrary to TEC’s allegations - he had worked to keep the diocese a part of the denomination. When asked if he had planned to lead the diocese out of TEC, he said, “Absolutely not.” He explained that no one had ever asked him to lead the diocese out and said it only decided to leave after TEC had taken steps to remove him as bishop – violating its own process for doing that.

The bishop also contradicted testimony from earlier in the week, in which TEC witnesses claimed that the denomination has supreme authority over its dioceses and congregations.  The bishop said that he shared the opinion of 14 other bishops that TEC has no actual authority over its member dioceses.

Ruling Expected Later This Year

Judge Goodstein said she will decide the case later this year. To be notified when the judge’s decision is made visit and sign up to receive the Diocesan e-newsletter.

(Note: For additional reports on the trial, read the Daily Updates and Bishop Lawrence’s letter.)

View trial photo album.

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