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South Carolina: Courts, Referees, and Chasing Squirrels

South Carolina: Courts, Referees, and Chasing Squirrels

By Ladson F. Mills III
Special to Virtueonline
August 9, 2017

Eric Franklin Senior Tutor at St. Stephen's House Oxford liked to remind his students that in life they will be faced with situations not unlike a controversial call made by referees during an athletic contest. Although the decision is final that does not mean it will not be discussed, debated and analyzed for years to come.

If his analogy is correct the South Carolina Supreme Court's recent decision to support the position of the National Church in its property dispute with the Diocese of South Carolina would qualify as such a situation. If it turns out to be the definitive call in what has become a protratced legal contest it will be discussed, analyzed and debated for years to come. It has been a long, hard fought, and bitterly divisive process and regardless of the outcome a bitter pill for many to swallow.

National Chancellor David Booth Beers' strategy to 'Litigate until they Capitulate' seems to have proven successful, but he was aided by a phenomena noted by Sir Winston Churchill that 'in war it is not so much a matter of who is right but who is left.' The National Church lasted long enough to find Justice Kaye Hearn who was very congenial to its position.

On September 24, 2015, in a VOL Article "SC Supreme Court Justice had Deep ties to National Episcopal Church" disturbing questions were raised over Justice Hearn's 'highly controversial decision not to recuse herself.' Cited in support was her membership in St. Anne's Episcopal Church Conway, South Carolina where her husband served as a member of the vestry. She was a member of The Episcopal Forum of South Carolina which has sponsored several conferences under the name "Enthusiastically Episcopalian." At the time of the hearing, the plaintiff Charles vonRosenberg was her bishop.

In South Carolina if a Justice is not challenged prior to a Supreme Court hearing, their input cannot be disputed.

A.S. Haley's recent article Massive Conflict of Interest Taints South Carolina Ruling points out the many conflicts of interest in Hearn's decision not to remove herself from the case. Despite the cultural myth that judges are to be dispassionate dispensers of justice Hearn's decision unmasked that in this case nothing could have been further from the truth.

Hearn would have never acted in such a high-handed manner had she anticipated any serious concern of being held accountable. In order to receive an appointment to the Supreme Court even in small state like South Carolina, requires political connection and protection.

Myra Jasanoff's book Liberty's Exiles exposes a little known and much avoided dark side of the American Revolution. It has been generally accepted that loyalist to British Crown either chose to return to England or quietly accept their fate and become integrated into the new American Nation. But Jasanoff describes it as a 'global diaspora' with former friends becoming bitter enemies, and those on the loosing side forced to abandon their possessions and leave. Even George Washington is cited for refusing to intercede on behalf of his close friend Beverley Robinson over his decision to remain loyal to England.

In many ways the modern legal process has produced something similar between those supporting the Diocese of South Carolina and those who support the National Church. In the early stages of the rift the major sentiment seems to have been a mutual sadness over the breakup of parishes and the straining of relationships. Even those with strong opinions were quick to distinguish disagreements between opposing views and the individuals holding the view. This sentiment is much rarer these days.

'Litigate till they capitulate' has been only one part of David Booth Beers' legal strategy. He appears to believe that if successful in the courts long time church members will remain with the beloved buildings rather than leave the place where ancestors worshiped for generations. While his strategy may have once been sound, it has become somewhat lessoned by the protracted and conflicted nature of the legal process.

Lawyers should not bear all the blame. A legal system that is grounded on advocacy hardly lends itself to resolutions which are best settled through prayerful discernment. In this both sides must accept shared responsibility.

In the end the South Carolina Supreme Court's convuluted ruling seems to have made things worse, at least for the moment. And how it will ever be effectively implemented may prove as illusive as the mythical "Seven Lost Cities of Cibola."

Many years ago my four legged jogging partner and I were out for a morning run when she engaged in her favorite activity of squirrel chasing. This particular morning, however proved to be different when at long last she achieved her goal and caught one. In what was probably only a few brief seconds but seemed an etenity time stood still. It was hard to tell who was the more surprised, the squirrel or my dog. Both looked at me with wide eyes as if to ask; well, what do we do now?

A very good question.

What do we do now indeed.

Ladson F. Mills III is a priest with over thirty years pastoral expereince. He is retired and lives with his wife in South Carolina. He serves as Scholar in Residence at Church of Saviour, Johns Island. He is the founder of Setebos-Sixpence Freelance Writing Ltd.

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