However, representatives of the diocese allege that the state Supreme Court breached due process and that Justice Kaye G. Hearn, one of five judges who ruled in this case, had a major conflict of interest. The court's ruling, according to the diocese, threatens freedom of religion, freedom of association, and due process of law.

The Split

The diocese disassociated from the Episcopal Church in 2012, but not over theological disputes, as has been widely reported. The conservative diocese did disagree with the church over major theological matters, including the ordination of gay ministers, which the diocese opposed. But that dispute and others like it did not motivate the diocese to split from the church.

Rev. Jim Lewis, a member of the diocese, told The Daily Caller News Foundation that the true impetus for the divide was the Episcopal Church's attempt to take control of the diocese and remove its leadership.

"When it became a bridge too far was in the fall, October of 2012. They attempted to remove our bishop, which would be the first step in essentially, as I said, taking over the diocese," Lewis told TheDCNF. "So, that's why we left. It became apparent there was no longer room for us in the Episcopal Church, that our differences of opinion were no longer going to be tolerated. That's why we left."

The church and the diocese were able to manage their theological disputes up until that point, according to Lewis.

"We've had any number of disagreements on matters of theology, and polity, and ethics with the national Episcopal Church for going on 30 years now. So, the sort of dialogue that we have had at one level was not a new thing. What changed the landscape and prompted our decision to leave, to disassociate with the Episcopal Church actually, was not those issues per se," Lewis told TheDCNF. "It was when they attempted to remove the bishop of the diocese."

Representatives of the Episcopal Church in South Carolina said that the removal of Mark Lawrence, the diocese's now former bishop, much like the split, was motivated primarily by Lawrence's alleged betrayal of his responsibilities to foster unity and keep parishes within the Episcopal Church. The church brought disciplinary sanctions against Lawrence in 2012 for what they saw as a violation of his duties as bishop, namely the duty to "guard the faith, unity, and discipline of the church" within his diocese.

The church determined that Lawrence "abandoned the Episcopal Church" in light of his alleged "open renunciation of the Discipline of the Church," according to an official notice of the disciplinary measures the church brought against Lawrence in October of 2012.

Twelve members and two priests of the diocese brought complaint against Lawrence for his failure to oppose three acts that altered the constitution of the diocese. The acts were passed in diocesan conventions over which Lawrence presided. They altered the language of the diocesan constitution so that the diocese only pledged itself to the constitution of the Episcopal Church, not to its Canons, and rejected Title IV of the constitution, which governs the discipline of bishops. One of the acts altered the language of the purpose statement of the Diocesan charter as well so that the incorporation of the charter represented the Diocese of South Carolina alone and not the national Episcopal Church.

Lawrence also ordered Wade Logan, the diocesan chancellor, to issue quitclaim deeds to every parish in the Diocese of South Carolina in order to dissolve the Episcopal Church's legal claim, or trust, in each of those properties.

The Episcopal Church interpreted these actions as attempts on Lawrence's part to establish the diocese's independence from the national denomination and to push the parishes to split from the Church. The Episcopal Church relieved Lawrence of the position of bishop and Bishop Katharine Jefferts Schori accepted Lawrence' renunciation of his vows to the Church.

The Episcopal Church is currently enjoined in a federal lawsuit against Lawrence under the Lanham Act on the grounds that he continues to advertise himself as the bishop of the diocese.

Freedom of Religion Violated?

The Episcopal Church attempted to use the Dennis Canon to lay claim to 36 parish properties of the diocese that split from it. The Dennis Canon, established in 1979 by the General Convention of the Episcopal Church, declared that church properties belonged to the diocese instead of the parishes.

The Episcopal Church used that church law in this case to claim that it had a trust controlling the parish properties in question, and therefore owned them.

What appeared to be a dispute over property quickly implicated First Amendment rights and the Establishment Clause, when the South Carolina Supreme Court applied different standards and rules to the Episcopal Church for establishing a trust in property than those governing secular organizations.

The court, in applying different and more lenient standards to the Episcopal Church, appeared to favor one denomination over another, according to Alan Runyan, an attorney representing the diocese.

"According to this decision, the Supreme Court of South Carolina has created a special rule which operates here to the benefit of the Episcopal Church, a New York unincorporated association, and to the punishment of the parish churches in the diocese of South Carolina, many of whom predate the Episcopal Church and the United States of America," Runyan told TheDCNF. "Because, in the exercise of their protected rights to their religious beliefs and to associate with those they choose to associate with, they successfully withdrew from the Episcopal Church, only to have applied to them a rule that would not apply to the U.S. Chamber of Commerce."

"And I say that because in South Carolina there are very precise ways for how you create a trust in property," Runyan said. "In this case, the [South Carolina] Supreme Court majority expressly stated that, in fact, the Episcopal Church did not have to follow those rules. It didn't have to follow the same rules that the U.S. Chamber of Commerce would have to follow to create a trust interest in the property of a local chamber of commerce that had joined it. And it is in that respect that this is an egregious violation of the right to freedom of religion and the right to associate with others who share your religious beliefs because, in the exercise of those same rights, a secular organization would not have been punished."

Lewis told TheDCNF that the implications of the court's ruling, especially as they pertain to the Establishment Clause, posed a grave threat to the religious community at large.

"Part of our argument is that's a gross violation of the First Amendment, that the court here has established a different set of rules, a different precedent for how church property ownership is determined than what would be used for a secular nonprofit," Lewis said. "That's essentially establishment of religion. There are all kinds of problems with that that should be of concern certainly to anybody in the religious community."

Representatives of the Episcopal Church claim, however, that an opposite ruling, in which the court would nullify the Dennis Canon, would also violate religious liberty.

The Episcopal Church said in a summary of its Monday response to the Diocese of South Carolina's motions for recusal and for rehearing that "the First Amendment of the U.S. Constitution prevents civil authorities from interfering in a church's internal governance."

"The overwhelming weight of precedent, both in courts across the United States and in South Carolina's courts, upholds the state Supreme Court's ruling awarding property and assets to The Episcopal Church and its local diocese, The Episcopal Church in South Carolina," the Church's response summary added.

Recusal

The court's handling of the case between the diocese and the Episcopal Church was extremely unusual, according to Runyan. The number of opinions issued by the court indicated strong divides among the justices.

"There are two aspects of this case that are highly unusual," Runyan told TheDCNF. "One is that there are five separate opinions. I don't purport to be an encyclopedia of South Carolina Supreme Court opinions, but I know of no other South Carolina Supreme Court opinion in which the opinion of the court is expressed in five separate and all different opinions of the justices. That's one aspect."

The diocese, however, filed a motion for recusal based on only one of those five opinions -- that of Justice Hearn. The diocese cited Hearn's memberships in multiple Episcopal organizations, the involvement of her husband in Episcopal leadership, and the benefits she rendered to the church as the justifications for their motion for her recusal, and one of the reasons they petitioned for a rehearing.

"The 14th amendment guarantees due process, and an element of that is the presumption that, particularly when you're talking about a judge, no one should make a decision about something in which they have a vested interest," Lewis told TheDCNF. "In Judge Hearn's case, that's very clearly the case. She was a partisan in the decision, the discussions leading up to our departure from the Episcopal Church. She was a member of a congregation that left us to return to the Episcopal Church. Her husband has served in leadership capacities in that congregation and in the local [Episcopal] diocese that was formed to replace us after our departure. She's effectively a member in multiple organizations that have a vested interest in the outcome of this trial."

The Episcopal Church, and Hearn's parish church in particular, stood to benefit from Hearn's ruling, according to Lewis.

"By the South Carolina judicial code of conduct [she] should have, at the very least, informed all parties of that potential conflict of interest, and failing that, should have recused herself outright given the scope of these conflict of interest," Lewis said.

The Episcopal Church claimed that the accusations against Hearn, with regard to the motion for recusal, are baseless, according to their legal response filed Monday with the court.

"This ludicrous and baseless argument does not merit a response," the Church wrote in their response.

"Being a 'member' of a church in the ecclesiastical sense is not the same as being a 'member' of an unincorporated business association such that the person is liable for the association's debts. A rule extending such financial responsibility to all baptized, confirmed, and received Episcopalians would come as a surprise to many and is laughable as it is untenable," the response added.

The Church claimed that forcing Hearn to recuse herself based on her religious beliefs would be religious discrimination, and that in their eyes, the motion for recusal, like their split with the Church, was "a sham...a complaint over something that was perfectly acceptable to Respondents until it wasn't."

"Her religious beliefs and those of her husband are not grounds for recusal. Respondents knew she was Episcopalian from the beginning yet they waited until they lost to raise the issue and they are now asking for a re-do. This is an abuse of the judicial system," the response added.

A Legal Groundhog Day?

The second factor that makes this case so unusual, according to Runyan, is that it is essentially a legal Groundhog Day. The exact same issue between the exact same parties in the same state has already been tried, and previously came to a much different conclusion.

"The second aspect is, these exact issues involving the Episcopal Church, the Diocese of South Carolina, and a parish of the Diocese of South Carolina were put before the court and decided almost eight years ago to the day, and they were decided exactly opposite to this decision," Runyan told TheDCNF.

Representatives of the Episcopal Church told TheDCNF, however, that Runyan was only partially correct. The case to which Runyan referred is commonly called the All Saints Decision of 2009, in which a single church congregation split from the Episcopal Church. The congregation laid claim to their church property, so the Episcopal Church took them to court over the issue. The South Carolina Supreme Court ruled in the congregation's favor, deciding that the Dennis Canon did not meet the burden of proof for establishing a trust in the property in light of the particular way in which the previous owners of the property entrusted it to the Episcopal Church.

Therein lies the rub. The properties of each of the dissenting parishes in the current case were entrusted to the Episcopal Church via individual legal agreements between the former owners of each property and the Church. That means that, depending on the way in which each of those agreements were worded, the Dennis Canon may be enough to establish a trust in some of those properties but not in others. In light of that, each of the dissenting parishes have their own lawyers, and seven of those parishes are not bound by any trust established by the Denis Canon according to the court's current ruling.

The way in which the South Carolina Supreme Court handled the case process also presents significant due process issues, according to Runyan, because the case went straight to the South Carolina Supreme Court without ever going before a trial court. Runyan told TheDCNF that a trial court should have ruled on whether the minimal burden for a religious organization to establish a trust in property, as defined in the U.S. Supreme Court case Jones v. Wolf, was ever met by the Episcopal Church.

The case was first raised on appeal, and the state Supreme Court decided that the issue of minimal burden, satisfied in Jones v. Wolf by applying the same trust rules to a religious organization as are applied to the U.S. Chamber of Commerce, meant instead that the church had to be subjected to a lesser burden. Therefore, the court decided that the same rules that apply to the U.S. Chamber of Commerce should not be applied to the church, despite having no trial court ruling on the matter, and allowed the church to establish a trust in property simply by claiming that it had a trust. Runyan said that decision constituted a violation of the Establishment Clause.

The Episcopal Church disputed Runyan's interpretation of Jones v. Wolf, and cited the fact that 14 other states have established trusts concerning the Episcopal Church along similar interpretations of that case.

Interpretations of Jones v. Wolf aside, however, the process by which the current case went before the state Supreme Court may not have been as problematic as Runyan alleged. The court has original jurisdiction and can take any case raised on appeal before an appeals court rules on it.

The Stakes

Representatives of the dissenting parishes said the current ruling on the case presents dire implications immediately to the diocese, as well as to businesses and religious organizations throughout South Carolina.

For Lewis and the 54 congregations attached to the 29 parishes in question, the fate of the properties is paramount. Some of the churches are older than the Episcopal Church, with some even older than the U.S., and have served as places of worship for 12 generations of local families. To lose those churches to the Episcopal Church is, for Lewis, inconceivable.

"I'll use the example of St. Philip's church," Lewis said. "St Philip's was in existence over a hundred years before the Episcopal Church even existed. And the Episcopal Church has done nothing to contribute to the development of that property or the ministries there. That those assets for doing ministry, which is why they're important to us, would be given to an unincorporated New York association, is just incomprehensible."

"We go back to 1785 as a diocese, and some of our parishes go back a hundred years before that -- St. Philip's being one of those. We have, I think, 13 colonial era parishes in our diocese," Lewis added.

Runyan, however, told TheDCNF that the case has even graver consequences than the fate of historic assets for ministry. The current ruling, according to Runyan, would create legal ground for religious organizations in South Carolina to get away with business relationships and transactions that no secular organization could.

Representatives of the Episcopal Church of South Carolina, meanwhile, said in their legal response that no evidence exists to support the idea that establishing a trust with the Dennis Canon would disrupt the business world, as 14 other states have "found trusts to exist based on similar facts involving the Episcopal Church and its parishes."

The rights of hierarchical churches to govern their own matters based on their own ecclesiastical law, without interference from the government, is what the Episcopal Church believes to be at stake in this matter.

"We trust that the court will recognize the conflict created by this ruling and that lots of people besides just the diocese of South Carolina would care about that fact," Lewis told TheDCNF.

Both parties agreed on Sep. 1 to mediation, which has not yet occurred.

Representatives of The Episcopal Church declined TheDCNF's request to provide comment.

END