The following op-ed appeared in the Post and Courier September 16, 2017. It is reprinted with permission.
Over the last five years, an unfortunate, unseemly battle has been taking place. The historic Diocese of South Carolina and most of its parishes have been engaged in a costly legal battle with the national Episcopal Church in New York over ownership of some of the nation’s most historic properties and the right to worship as they choose. To many, this appears to be little more than a private argument; to others, it is an embarrassment to the Gospel witness.
In reality, this is a battle that should concern all people, because, at its core, it is a battle for freedom. If the Diocese of South Carolina and the churches lose, and their property is taken away, no faith-based organization in the state will be guaranteed its First Amendment right to the “free exercise of religion.” This may seem alarmist, but it is not. This is specifically a battle for religious freedom, and, by consequence, a battle for freedom in general — the dearest of all American virtues.
How we got here
In 1680, St. Philip’s Anglican Church was built by colonists often fleeing religious persecution. It is one of the oldest churches in America and the oldest church in South Carolina. A century later, Article 38 of the 1778 State Constitution declared, “the churches, chapels, parsonages, glebes, and all other property now belonging to any societies of the Church of England…. shall remain and be secured to them forever.”
Shortly after the American Revolution, in 1785, the colonial churches in South Carolina united to form a Diocese. Later, the Diocese of South Carolina joined eight other dioceses in founding and voluntarily associating with the national Episcopal Church. Thus St. Philip’s, which existed more than a century before the Diocese of South Carolina or the national Episcopal Church, helped create first one and then the other.
For over three centuries, St. Philip’s has been a leading light in the city of Charleston and beyond, tending to the poor, the sick, and the needy, and sharing the love of Christ. Historically, a lantern in the steeple acted as a lighthouse, shepherding ships in from the sea along “St. Philip’s Reach.” Her massive, trinity of doors has always opened to welcome all to the life within.
Throughout its history, St. Philip’s burned twice, endured bombardment from federal forces, suffered extensive damage from the 1886 earthquake, survived countless storms, was beset by tornadoes in 1938 and had its steeple knocked off center by Hurricane Hugo. Following these trials, it has been the people of its congregation who have given their time and treasure to rebuild the noble structure that shines as a beacon over the Holy City. The national Episcopal Church has never contributed a dime to this congregation or its buildings. Indeed, over the years, money has flowed from St. Philip’s to the Episcopal Church, not the other way around.
Since the 1970s, theological and doctrinal issues have challenged the relationship between St. Philip’s, its Diocese and the national Episcopal Church. Yet, despite disagreements, St. Philip’s, her priests, bishops and Diocese sought to remain part of the national Episcopal Church.
In 2012, the Episcopal Church concluded that the bishop of the Diocese of South Carolina, in part, by affirming the divinity of Christ and the authority of scripture, had “abandoned” the Episcopal Church, and it attempted to remove him. Only then did St. Philip’s and over 80 percent of the churches in the Diocese vote to disassociate from the national Church.
The churches that chose to remain with the national Church, such as Grace Episcopal Church, were never threatened by the Diocese, St. Philip’s or any other church with the loss of their property; they were simply allowed to walk away in Christian brotherhood, form a new Diocese and continue worshipping according to their beliefs.
The reverse was not the case. The national Episcopal Church and its newly formed Episcopal Diocese claimed ownership over all of the property and financial assets held by St. Philip’s and the other Diocesan churches, claiming the property was held in trust for their benefit. Two years ago, these claims were rejected by a state trial judge applying established legal precedent.
Now, the State Supreme Court has recently ruled, in a sharply divided opinion, that the property that Charleston families have built and lovingly maintained for generations belongs not to them but to an unincorporated body from New York that was not even in existence at the time the parish was founded.
James Madison, “Father of the Constitution,” said, “Conscience is the most sacred of all property.” Yet, the majority of the State Supreme Court has now said that families who have worshipped in St. Philip’s for over twelve generations, and whose loved ones lie buried in the historic churchyard, must give up their conscience and beliefs or be forced to leave the sanctuary that has been their spiritual home for centuries.
If this very idea sounds ominously un-American, it should, and it should serve as a serious warning to others whose rights will be threatened by this decision. If a church as established as St. Philip’s is not immune to hostile takeover, then no church in South Carolina is safe.
What’s wrong with the ruling
There are serious flaws in the court’s conclusion. Does the right to voluntarily associate not imply the right to voluntarily disassociate and revoke prior commitments? If not, how can the “free exercise” clause of the Constitution remain intact? In addition, the majority of the Supreme Court made this decision on the fate of over $500 million of property without a proper factual review of whether the various parishes actually acceded to the canons of the Episcopal Church. For example, there is no evidence that St. Philip’s ever did so. If the present decision stands, as one dissenting opinion states, this case will be “nothing less than judicial sanction of the confiscation of church property.”
In short, by judicial fiat, the majority opinion imposed on a group of South Carolina churches, a standard of property law that it has not, and would not, impose on any secular organization. It does not take a legal scholar to recognize the danger this court action creates for religious freedom, and freedom in general. For these reasons, motions for reconsideration have been filed.
Sadly, the most serious threat to freedom comes from the Supreme Court’s failure to give St. Philip’s and the other parties a fair, unbiased hearing. The Supreme Court justice who provided the deciding vote to the majority is an active member of the Episcopal Church. She, along with her husband, actively participated in the events that gave rise to this lawsuit.
The South Carolina Code of Judicial Conduct requires that a judge disclose any potential conflict of interest and then disqualify herself from the case unless the parties to the litigation agree to waive the conflict. That did not happen.
St. Philip’s and others have filed a motion for recusal which is supported by strong affidavits from two experts — a national and a South Carolina expert on legal and judicial ethics. These highly respected authorities conclude that judicial disqualification is necessary. Participation by a biased judge is a violation of the constitutional rights of due process. Indeed, as one expert concludes, “this is not a close case” and it is rare to find a situation, like this, “in which a judge participates as an impartial judicial officer in a matter in which the judge was previously involved as a lay person.”
If the South Carolina Supreme Court does not reconsider, then fundamental religious freedoms and centuries old ownership of property will be overturned by a court that is not free of personal bias. This would be a travesty of justice.
Can 23,000 Anglicans from 54 congregations continue to worship without the magnificent sanctuaries they so lovingly built and maintained to honor God? Of course. Christianity is much more than the walls of a building. Parishioners can worship in living rooms, empty stores, gymnasiums or auditoriums.
What’s at stake
But St. Philippians and others will lose all they labored to create: their glorious organ music, majestic choirs, inspiring stained glass windows, soaring ceilings and spires drawing the soul to heavenly heights, sacramental ceremonies in those sacred spaces, and, most of all, the joy of standing shoulder to shoulder with family and friends in the very pews where countless generations have recited the same liturgy, the same creeds, sung the same hymns and knelt at the same altar to worship the same God. Deeply rooted communities of Christ will be scattered.
Religious freedom in these cherished, sacred spaces dating back to 1680 will be denied, and these properties taken away. This freedom will be denied, not because tens of thousands of parishioners have changed their beliefs, but rather because they have not. Members of St. Philip’s and the other Diocesan congregations adhere to the faith of their fathers and grandfathers, of great-grandfathers and great-great-grandfathers, the historic faith of Christians as practiced for 2,000 years.
Freedom of worship hangs in the balance, in the hands of a court tainted by personal bias.
The Rev. Jeffrey Miller is rector of St. Philip’s Church.