September 23, 2009
By Mary Frances Schjonberg

SOUTH CAROLINA – The South Carolina Supreme Court has overturned a lower court decision in favor of the minority of the members of the parish of All Saints, Waccamaw in Pawley's Island, South Carolina who remained loyal to the Episcopal Church and the Diocese of South Carolina.

The Supreme Court said in its September 18 opinion that the majority of the parish members could retain the parish's property after they left the Episcopal Church and the diocese in 2003 to affiliate with the breakaway Anglican Mission in America (AMiA).

A statement issued by the Presiding Bishop's office said that the opinion was "particularly disappointing in the light of the long struggle in which the Episcopal Church and the Diocese of South Carolina have worked cooperatively to preserve the property of this parish for the mission of the church and the diocese."

"Time has not permitted a careful analysis of the opinion or of the options that confront the church and the diocese at this point," the statement said.

South Carolina Bishop Mark Lawrence said that "there's a long wisdom of tradition in the scriptures, and counsel in the book of Ecclesiastes that there is a time to keep silent and a time to speak, and as picked up in the letter of James, where James says, ‘Know this my beloved brothers and sisters, let everyone be quick to hear and slow to speak.' I believe this is such a time."

The court's opinion arose from two different lawsuits, the earliest filed in 2000, over the issue of who owns the All Saints 50-acre campus that is also home to the AMiA. One of the cases arose in 2000 when the diocese filed a public notice that All Saints, subject to applicable canon law, holds its property in trust for the diocese and the Episcopal Church as a whole. Attorneys for the diocese said that the notice was filed "out of concern that All Saints might attempt to convey its property" to the AMiA.

The parish then sued to have the diocesan notice removed from public records, claiming that legal ownership and control belonged entirely to the parish free from any interest by the Episcopal Church and the diocese.

When in December 2003, All Saints proposed affiliating with the AMiA, then-diocesan Bishop Edward L. Salmon Jr. put the parish under his supervision, and helped it to organize a new vestry. That vestry then filed the second lawsuit, asking the court to recognize them as the proper representatives of All Saints parish, entitled to possession of All Saints' name and property.

The court said it used a "neutral principles" approach, which settles church disputes in terms of state property, trust, and contracts laws as instructed by the First Amendment, as opposed to a "deference approach" which would call for courts to defer to the positions and contentions of ecclesiastical authorities.

"We remain mindful of the First Amendment and its protections of religious liberty," Chief Justice Jean Hoefer Toal wrote for the unanimous court. "Nonetheless, adjudication of this matter does not require us to wade into the waters of religious law, doctrine, or polity."

The court's opinion said that the heirs of the holders of the original 1745 trust deed were not the owners of that land, but "simply acted as custodians of the property" until All Saints was established. The parish corporation is the owner, the court said. The opinion also said a 1903 quit-claim deed from the diocese gave title to the property to the parish.

According to the opinion, neither the "Dennis Canon" (Canon 1.7.4) (passed by the General Convention in 1979 to state that a parish holds its property in trust for the diocese and the Episcopal Church) nor the 2000 notice filed by the diocese "has any legal effect on title to the All Saints congregation's property."

Episcopal News Service